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M.

A R G U M ENT
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JOHN A. BINGHAM,
CIIAIRMAN OF THE MANACERS ON THE PART OF THE IOUSE,

is ºr () tº e

THE SENATE OF THE UNITED STATES,
SITTING FOR

TIE TRIAL (ºr YxDREW JOHNSON,
PRESIDENT OF TH tº UNITED STATES,

..

IAIPEACHED OF IIIGII CRIMES AND MISDEMEANORS,
MAY 4, 5, ANI) (, 1863.

W A S H IN G T O N :

F. & J. RIVES & GEO. A. BAILEY,
REPORTERS AND PRINT CRS OF THE DEBATES OF CONGRESS.

1868.

Tocuments Dept."

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JK's 75
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A RG U M ENT.

Hon. JOHN A. BINGHAM, one of the

Managers of the impeachment on the part of
the House of Representatives, closed the argu
ment, as follows:
Mr. PRESIDENT and SENATORs: I protest,
Senators, that in no mere partisan spirit, in
no spirit of resentment or prejudice do I come
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to the argument of this grave issue.

A Rep

resentative of the people, upon the responsi
bility and under the obligation of my oath, by
order of the people's Representatives, in the
name of the people, and for the supremacy of
their Constitution and laws, I this day speak. I
F. you, Senators, “hear me for my cause.”
ut yesterday the supremacy of the Constitu
tion and laws was challenged by armed rebel
lion; to-day the supremacy of the Constitution
and laws is challenged by executive usurpation,
and is attempted to be defended in the pres
ence of the Senate of the United States by the
retained advocates of the accused.

drew Johnson, then Vice President, by force
of the Constitution, became President of the

United States, upon taking the prescribed oath
that he would faithfully execute the office of

President, and preserve, protect, and defend
the Constitution of the United States.

The

people, bowing with uncovered head in the
|. of the strange, great sorrow which
had come upon them, forgot for the moment
the disgraceful part which Andrew Johnson

had played here upon the tribune of the Sen
ate on the 4th day of March, 1865, and accepted
the oath thus taken by him as the successor of
Abraham Lincoln as confirmation and assur
ance that he would take care that the laws be

faithfully executed. It is with the people an
intuitive judgment, the highest conviction of
the human intellect, that the oath faithfully to

execute the office of President, and to preserve,

protect, and defend the Coustitution of the Uni
ted States, means, and must forever mean–

For four years millions of men disputed by

while the Constitution remains as it is—that the

arms the supremacy of American law on Amer

President will himself obey, and compel others

ican soil. Happily for our common country,
happily for our common humanity, on the 9th
day of April, in the year of our Lord 1865, the

to obey, the laws enacted by the legislative de
partment of the Government, until the same shall
have been repealed or reversed. This, we may

broken battalions of treason and armed resist
ance to law surrendered to the victorious

assume, for the purpose of this argument, to be

legions of the Republic. On that day, not with
out sacrifice, not without suffering, not without
martyrdom, the laws were vindicated. On that
day the word went out all over our own sorrow.

stricken land and to every nationality that the
Republic, the last refuge of constitutional lib
erty, the last sanctuary of an inviolable justice,
s saved by the virtue and valor of its children.
the 14th day of April, in the year of our
65, amid the joy and gladness of the
* their great deliverance, here in the
capital, b
n assassin's hand, fell Abraham
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Lincoln,
President of the United States, slain
not for his crimes, but for his virtues, and

the general judgment of the people of this coun
try. Surely it is the pride of every intelligent
American that none are above and none be

neath the laws; that the President is as much
the subject of law as the humblest peasant on
the remotest frontier of our ever advancing
civilization. Law is the only sovereign, save

God, recognized by the American people; it is
a rule of civil action hot only to the individual,
but to the million ; it binds alike each and all,
the official and the unofficial, the citizen and the

great people themselves.
This, Senators—and I am almost fearful that
I may offend in saying it—is of the traditions

especially for his fidelity to duty—that highest
word revealed by God to man.

of the Republic, and is understood from the
Atlantic to the Pacific shores by the five and
thirty millions of people who dwell between

Upon the death of Abraham Lincoln, An

these oceans and hold in their hands to-day the

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greatest trust ever committed in the providence

tion, that “he shall take care that the laws be

of God to a political society.
I feel myself justified, entirely justified, in
saying that it rests not simply upon the tradi

faithfully executed,” is nevertheless invested
with the power to interpret the Constitution
for himself, and to determine judicially–Sen.
ators, I use the word used by the learned gen
tleman who opened the case for the accused
—to determine judicially whether the laws de
clared by the Constitution to be supreme are
after all not null and void, because they do not
happen to accord with his judgment.
That is the defense which is presented here
before the Senate of the United States, and
upon which they are asked to deliberate, that
the Executive is clothed with power judicially
—I repeat their own word, and I desire that
it may be burned into the brain of Senators
when they come to deliberate upon this ques
tion—that the President may judicially con
strue the Constitution for himself, and judi
cially determine finally for himself whether
the laws, which by your Constitution are de
clared to be supreme, are not, after ali, null
and void and of no effect, and not to be exe

tions of the people, but is embodied in their
written record from the day when they fired
the first gun on the field of Lexington to this
hour.

Is it not declared in that immortal Dec

laration which will live as long as our language
lives, as one of the causes of revolt against the
king of Great Britain, whose character was
marked by every act which may define a tyrant,
that he had forbidden his governors to pass
laws, unless suspended in their operation until
they should have received his assent—I use
the words of the Declaration, which, like the
words of Luther, were half battles—the law
should be suspended until his assent should be
obtained. That was the first utterance against
the claim of executive power to suspend the
laws by those immortal men with whom God
walked through the night and storm and dark
ness of the Itevolution, and whom he taught to
lay here at the going down of the sun the
foundations of those institutions of civil and

religious liberty which have since become the
hope of the world.

cuted, because it suits the pleasure of his high
ness, Andrew Johnson, first king of the peo
ple of the United States, in imitation of George

ſº the written record further, still ask

III, to suspend their execution. He ought to
remember, when he comes with such a defense

ing pardon of the Senate, praying them to

as that before the Senate of the United States,

remember that I speak this day not simply in

that it was said by one of those mighty spirits
who put the Revolution in motion and who con:
tributed to the organization of this great and

the presence of Senators, but in the presence
of an expecting and waiting people, who have
commissioned you to discharge this high trust,
and have committed to your hands, Senators,
the issues of life and death to the Republic.
I refer next to the words of Washington, first
of Americans and foremost of men, who de
clared that the Constitution which at any time
exists until changed by the act of the whole

people is sacredly obligatory upon all.
I refer next to a still higher authority, which
is the expression of the collective power and
will of the whole people of the United States,
in which it is asserted that—
“This Constitution, and the laws made in pursu
ance thereof, and all treaties made or which shall

be made by the authority of the United States, shall
be the supreme law of the land; and the judges in
every State slal be bound thereby, anything in the
constitution and laws of any State to the contrary
notwithstanding.”

powerful people, that Caesar had his Brutus,
Charles I had his Cromwell, and George III

should profit by their example.

Nevertheless

—and this is the central point of this entire

discussion—the position is assumed here in the
presence of the Senate, in the presence of the
people of the United States, and in the pres:
ence of the civilized world, that the President
of the United States is invested with the judi

cial power to determine the force and effect
of the Constitution, of his own obligations
under it, and the force and effect of every law
passed by the Congress of the United States.
It must be conceded, if every official may chal
lenge the laws as unconstitutional, and espe:
cially if the President may, at his pleasure,
declare any act of Congress unconstitutional,

reject, disregard, and violate its provisions, and

That is the solemn declaration of the Con

this, too, by the authority of the Constitution,

stitution ; and pending this trial, without a

that instrument is itself a Constitution of an:

arallel in the history of the nation, it should

archy, not of order, a Constitution authorizing
a violation of law, not enjoining obedience to
law. Senators, establish any such rule as this
for official conduct, and you will have proved

{. written upon these walls.
How are these propositions, so plain and
simple that “the wayfaring man could not err
therein,” met by the retained counsel who ap

pear to defend this treason of the President,
this betrayal of the great trusts of the people?

The proposition is met by stating to the Senate,
with an audacity that has scarcely a parallel in
the history of judicial proceedings, that every
official may challenge at pleasure the supreme
law of the land, and especially that the Presi
dent of the United States, charged by his oath,

charged by the express letter of the Constitu

yourselves the architects of your country's
ruin; you will have converted this land of law
and order, of light and knowledge, into a land
of darkness, the very light whereof will be
darkness—a land
“Where eldest Night

And Chaos, ancestors of nature, will hold
Eiermal anarchy, amidst the nºise
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Of endless wars, and by confusion stand.

Disguise, gloze over, and, by specious and

l'IXI I *!'Al IUOl

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ingenious argument, excuse the Prl'sident's
acts, as gt>utlemen mny, the fact is that we are
pasRing upon the question whether the Presi·
de11t may not, at his pleasure, a1,d without.
peril to l,is oflicial position, Ret aside nnd
a1111ul both the Co118titution nnd laws of the
United States, and in bis great oUice inaugurate auurchy in the land.
The whole defense of the President rests
upon the simpli! but stnrtling proposition that
he cnnnot be held to answer for any violation
of the written Constitution and laws of the
Unite<l States, because of his asserted right
under the Constitution, aud by the Constitu·
tiou, to interpret for himself and execute or
disregard, at his eleciion, any provision either
of the Constitution or statutes of the United
States.
No matter what demagogues may say of it
outside of this Chamber, no matter what re·
tained counsel mny say of it inside of this
Chamber, that is the issue; and the recording
angel of history has already struck it into the
adamant of the past, there to remain forever;
and upon that. bsue, Senators, you and the
House of Representatives will stand or fall
before the tribunal cf the future. That is the
issue. lt 'is all there is of it. It is what is
embraced in the articles of impeachment. It
is nil that is embraced in them. In spite of
the technicalities, in spite of the lawyer's tricks,
in !!pite of the futile pleas that have been interposed here in the President'R defense, that
is the issue. It is the head and front of An·
drew Johnson's offending, that he has a�sumed
to himself' the executive prerogative of inter·
preting the Constitution and decidintupon the
validity or the laws at his pleasure, 1111d suspending them an<l dispensing with their execution.
I say it a.!!ain, Senators, with every respPct
for the gentlemen who sit here as tl1e repre·
sentatives of States and the representatives as
well of that grPat people who are one people
though organized by StatPs, that the man who
lms heart! this prnlonged discnssion, running
through days and weekR, wlw does not under·
stand this to be the plain, simple proposi1ion
made in the hearing of Senators, insisted upon
as the President's defense, is one of those unfortunates whom even a thrush might pity, to
whom God in his providence has denied the
usual measure c,fthat intellectual faculty which
we cull rea�on.
In 1he trial of this case tl1e Senate of the
Unite,) StnteR is 1he sole 11.nd only tribunal
which can judici:dly determine this qni!stion.
'fh� power to decide it i� with the Senate; the
res1i'ousiliility to decide it aright is upon the
Senate. Thot. responsibilit.y can be divi,led by
th<J Sena I� with no human being outsi<le of this
Chamlu•r. 'lt is all-.i1npor1a11t to the people
of 11,e UnitP.dStates at large as it isall-iinport·
011!. to tlH·ir H.. pi'esPntatives in Congress assembled, nn,I surely it is 111l-in1porlant. to die Sen·
ators, sworu to do justice iu the premises
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1 betWN'n the people and the President, that
1 this great issne which touches the nation's life
I shall he decided in accordance with the spirit
ns well as with the letter of the Constitution.
It is oll·imp()rtant that it shall he dl'cided in
I accordauce with that justice to establish which
the Constitution itself was ordained; thatjus­
tice before the majesty of which we this day
bow as before the majesty of that God whose
attribnte it is; that justice which dwelt with
Him before worlds were, which will abide with
Him when worlds perish, and by which we shall
be judged for this day's proceeding.
The Senate, having the sole power to try im•
peachmenls, must of necessity be veste<l hy
every intendment of the Constitution with the
sole and exclusive power to decide every ques­
tion of law and of fact involved in the issue.
And yet, Senators, although that would seem
to be a self-evident proposition, hours have
been spent here to persua<le the Senate of the
United States that the Senate at last had not
the sole power to try every issue of law and
fact arising upon this question between the
people an<l the President. The ex-Attorney
General well said the otuer day, for he qnoted
a familiar canon of interpret..ition, "Effect
must be given to every wo1·d in a written stat·
ute." Let effect be given to every word in
the written statute of tlie people-their funda·
mental law, the Constitution of the United
States-an<l there is an end of all controversy
about the exclusive power of the Senate to
decide every question of law and fact arising
upon this issue.
What n,eant this long·continned discus�ion
on the part of the counsel for the President,
I resting upon a remark of my colle,1gue [Mr.
Manager Buni,;R.] in his opening on behalf of
the people that this was not a court? Was it
an attempt to divert the Senate from the ex·
press provision of the Constitution that the
Senate should be the sole and final arbiters
between the people and the President? What
meant this emp1y criticism ubout the words of
my colleague that this was not a court, hut the
Senate of the United States? My colleague,
Mr. Chief Justice, simply followed the plain
words of the Constitution, that "the Senate
shall have the sole power to try all impeach·
ments."
I propose neither to exhaust my strength nor
the patience of the Senate by dwelling upon
this rniseralile device to raise an issue between
the Senate and the courts, because that is what
it resulted in at last all hough it came after a
good deal of deliueration, after a good many
days of incubation, after many utterances on
many subjects concerning things both in ihe
heavens above and in the earth beneath and in
the waters under the earth I I do not propose
to imitate the example of the learned an<l ac­
complishc<l counsel of the President on the
trial of this grave issue wl1ich carries with it so
many und so great results to all the people of
the U uited States not only of tuis day, lius, of
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the great hereafter.

I trust. I shall be saved in

the providence of God, by His grace, from be
coming, as have some of the counsel for the
President in this august presence, a mere eat

York? The most significant lesson to be gath
ered from which is this: that the right way and
the effectual way by which a man may make

er-up of syllables, a mere snapper-up of uncon

his speech immortal is to make it eternal.
[Laughter.] What becomes of his long drawn

sidered trifles. 1 propose to deal in this dis
cussion with principles, not with “trifles light
as air.” I care not if the gentlemen choose to
call the Senate sitting in the trial of an impeach

and guilty man, who stands this day clothed
with perjury as with a garment in the presence
of the people, to be heard first in the Supreme

ment a court.

out sentence here about the right of this accused

The Constitution calls it the

Court of the United States before the Senate

Senate. I know, as every intelligent man
knows, that the Senate of the United States,
sitting upon the trial of impeachment, is the
highest judicial tribunal of the land. That is

shall proceed to trial and judgment? . The

conceding enough to put an end to all that was
said on that point—some of it most solemnly—
by the stately argument of the learned gentle
man from Massachusetts, [Mr. Curtis;] some
of it most tenderly by the effective and adroit
argument of my learned and accomplished
friend from Ohio, [Mr. Groesbeck, and some
of it most wittily—so wittily that he held his
own sides lest he should explode with laughter
at his own wit—by the learned gentleman from
New York, [Mr. Evarts, who displayed more
of Latin than of law in his argument, and more
of rhetoric than of logic, and more of intellect

Senate is vested with the sole and exclusive

power to try this question, and the Supreme
Court of the United States has no more power
to intervene either before or after judgment in

the premises than has the Court of St. Peters
burg; and so the people of the United States,
I hesitate not to say, will hold.
Nevertheless, clear and manifest as this

proposition is, it has been insisted upon here
from the opening of this defense to its close by
all the counsel who have participated in the
discussion, that the Supreme Court is the final
arbiter for the decision of all questions arising
under the Constitution.

I do not state the

proposition too broadly, Senators. My occu
pations have been of such a nature from the

ual pyrotechnics than of either. [Laughter.]

commencement of this trial to this hour that I

But, Senators, I am not to be diverted by
these fireworks, by these Roman candles, by
these fiery flying serpents that are let off at

have relied more upon my memory of what
counsel said than upon any reading which I

pleasure, and to order, by the accomplished
gentleman from New York, from the point

defense of the accused; but I venture to say

have given to their voluminous arguments in
that the proposition is not more broadly
stated by me than it has been stated by them.

made here between the people and the Presi
dent by his advocates. I stand upon the plain,
clear letter of the Constitution, which declares
that “the Senate shall have the sole power to
try all impeachments;” that it necessarily in

under the Constitution of the United States

vests the Senate with the sole and exclusive

which by no possibility can be considered as

I submit to the Senate that the proposition
for the defense is not warranted by the Consti
tution; that there are many questions arising

power to determine finally and forever eyery original questions either in the Supreme Court
issue of law and fact arising in the case. This
is one of those self evident propositions aris

or in any other court of the United States.
For example, my learned and accomplished

ing under the Constitution of the United States

friend who honors me with his attention, and

of which Hamilton spoke in words clear and
strong, which must carry conviction to the

represents the great and growing Common

mind of every man, and which I beg leave to

BULL, J is here and is to remain here, not by

read in the hearing of the Senate.
Said Hamilton, a man who was gifted by

force of any decision which the Supreme Court
of the United States has made, or by force of

Providence with one of those commanding
intellects, whose thoughts indelibly impressed
themselves wherever they fell:

any decision which the Supreme Court of the
United States may hereafter make. It is not
a question within their jurisdiction. Illinois
is one of those great Commonwealths which,
since the organization of the Cnnstitution and

“This is one of those truths which, to a correct and

unprejudiced mind, carries its own evidence along

wealth of Illinois upon this floor, [Mr. TRUM

with it, and may be obscured but cannot be made

within the memory of living men, have sprung

plainer by argument or reasoning.

up from the shores of the beautiful Ohio away
to the golden sands of California, gildling the

It rests upon

axioms as simple as they are universal—the means

ought to be proportioned to the end; the persons
from whose agency the attainment of any end is ex
ected ought to possess the means by which it is to

continent across with a cordon of free Common

wealths under the direct operation of the Con

e attained.”—Federalist, No. 23.

stitution of the United States.
The end required by the letter of your Con
stitution of the Senate of the United States is

that the Senate decide finally and for themselves
every issue of law and fact arising between the

people and their accused President.

What

The people by

that Constitution did provide that the Congress
shall have power to admit new States into the
Union, and when the Congress passed upon
the question whether the people of Illinois had
organized a government republican in form

comes then, I want to know, Senators, of the

and were entitled to assume their place in the

argument of the learned gentleman from New

sisterhood of free Commonwealths the decis

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ion was final, and the judge of the Supreme
Court who dares to challenge the great seal of
the State of lllinois, which the gentleman rep

Senate of the United States and clearly and
openly proclaim and avow that the Supreme

resents, ought to be instantly ejected from his
place, which he would thereby dishonor and

Nevertheless, the position assumed in this
defense for the accused that he may suspend
the laws, dispense with their execution, and
interpret and construe the Constitution for
himself to the hurt of the Republic, without
peril to his official position, if he accompanies

disgrace, by the supreme power of the people

speaking and acting through the process of
impeachment.

It does not belong in any sense of the word
to the judicial power of the United States to

decide all questions, arising under the Consti
tution and laws. Why, according to this logic,

the Supreme Court would come to sit in judg
ment at last upon the power given exclusively to
each House to judge of the election and quali
fication of its own members. Senators, the
judicial power of the United States is entitled

to all respect and to all consideration here and
everywhere else; but that judicial power, as

is well known to Senators, is defined and
limited by the terms of the Constitution, and
beyond those limitations or outside of those

grants that tribunal cannot go. I read from
the Constitution the provision in answer to
the argument of the gentleman touching the
judicial power of the United States:
“The judicial power of the United States shall be

Court has the power to try impeachments.

it either at the time or after the fact with a

statement that his only object in violating the
Constitution or in suspending the laws and dis
pensing with their execution was to obtain at
some future day a judicial construction of the
one or a judicial decision upon the validity of
the other, the Senate is not to hold him to

answer upon impeachment for high crimes and
misdemeanors, does involve the proposition,
and no man can get away from it, that the
courts at last have a supervising power over
this unlimited and unrestricted power of im

peachment vested by the people in the House
of Representatives, and this unrestricted power
to try all impeachments vested by the people
in the Senate.

On this proposition I am will

ing to stand, defying any man here or else
where to challenge it successfully. The posi

vested in one Supreme Court, and in such inferior
courts as the Congress may from time to time ordain
and establish.”
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tion assumed by the accused means that or it

“The judicial power shall extend to all cases, in
law and equity arising under this Constitution, the

like unto—

means nothing. If it does not mean that it is
“A tale told by an idiot,

laws of the United States, and treaties made, or which

Full of sound and fury, signifying nothing.”

shall be made, under their authority; to all cases
affecting embassadors, other, public ministers, and
consuls: to all cases of admiralty and maritime juris
diction; to controversies to which the United States
shall be a party; to controversies between two or

what colorable excuse is there for presenting

more States: between a State and citizens of another
State; between citizens of different States: between
citizens of the same State claiming lands under grants
of different States, and between a State, or the citi
zens thereof, and foreign States, citizens or subjects.”
“In all cases affecting embassadors, other public

ministers, and consuls, and those in which a State
shall be a party, the Supreme Court shall have ori
ginal jurisdiction. In all the other cases before men
tioned the Supreme Courtshall have appellate juris
diction, both as to law and fact, with such exceptions
and under such regulations as the Congress shall
make.”—Constitution, article 3.

Just nothing. Now, I ask you, Senators,
any such monstrous proposition as this to the
consideration of the Senate of the United

States?

I think myself in this presence justi

fied in reiterating the words of John Marshall
upon one occasion, that it is reasonable to
presume that the Senate knows something.
The original jurisdiction of the Supreme
Court of the United States cannot by any pos

sibility extend to a case of impeachment. Sen
ators will please remember the text of the Con
stitution which I have just read, that the original

As I said before, inasmuch as the Senate of

jurisdiction of the Supreme Court of the United

the United States has the sole power to try all
impeachments, and therefore the exclusive

States is by the express letter of the Constitu

tion restricted to foreign embassadors, other

power to finally determine all questions arising public ministers, and consuls, and to cases in
which a State may be a party.

The accused

therein, it results that its decisions can neither
be restricted by judgments in advance, made

is not a foreign embassador; the accused is

by either the Supreme Court or any other court
of the United States, nor can the final judgment

of the Senate upon impeachment be subjected

not a foreign minister; the accused is not a
consul; . the accused is not as yet, thank
God, “the State.” Therefore, the accused is

to review by the civil courts of the United States

not within the original jurisdiction of the Su

or to reversal by executive pardon. So it is preme Court of the United States.
written in the Constitution, that the pardoning
power shall not extend to impeachments. Im

peachment is not a case in “law or equity,”
within the meaning of the terms as employed
in the third article of the Constitution, which
I have just read. . It is in no sense a case
within the general judicial power of the United
States.

•.

Senators, no one is either bold enough or
weak enough to stand in the presence of the

When the gentlemen were dwelling so learn
edly and so long upon this question, and read
ing from the great case of Marbury vs. Madi
son, they ought to have remembered that the
Chief Justice who pronounced that decision,
and whose intellect, full-orbed, shed a steady
and luminous light on the jurisprudence of the
country for a third of a century, declared, what
no man has since questioned, that the orginal
jurisdiction of the Supreme Court as defined

A.

in this text of the Constitution could neither

be enlarged nor restricted by congressional
enactment. These gentlemen ought to have
remembered, further, when they invoked the
intervention of the Supreme Court or any other
court, between the people and this accused
President, that the appellate jurisdiction of
the Supreme Court, by numerous decisions,
depends exclusively under the Constitution
upon the will of Congress. It results, there
fore, that they must go to some other tribunal

for the settlement of this great question between
the people and the President, unless Congress
chooses to let them go to the Supreme Court
by a special enactment for their benefit.

The

appellate jurisdiction, Senators, of the Supreme
Court as defined in the Constitution by words
clear and plain and incapable of any misunder
standing or misconstruction, exclude the con

clusion that a case of impeachment can by any
possibility be within the jurisdiction of any of
the courts of the United States, either its dis

trict, its circuit, or its Supreme Court. The
Senate will notice that by the terms of the

Constitution the appellate jurisdiction from
the district and circuit courts is limited to the

cases in law and equity and the other cases
named in the Constitution, none of which em
brace a case of impeachment.
There is, therefore, Senators, no room for
invoking the decision of the Supreme Court of

that the Supreme Court of the United States

had solemnly decided both questions against
them.

Now for the proof. As to the obligation of
the heads of the Departments to learn their
duty under the law through the will of an Ex
ecutive, the Senate will remember that the
learned gentleman from New York handled
the great case of Marbury vs. Madison with
wondrous skill and dexterity. He took care,
however, not to quote that part of the decision
which absolutely settles this question as to the

obligation of the Secretaries to respond to the
will of the Executive in questions of law ; he
took care not to quote it, and to keep it in the
back ground. Perhaps, Senators, he assumed
that he knew all that the poor Managers of the
House knew about this case, and then he knew
all that he knew besides, gathered from Taci

tus, if you please, and from the phillipics of
Cicero against Cataline and from that speech
of his in defense of Milo, which it happens he
never made until after poor \lilo was convicted
and banished and was heard to cry out in the

agony of his soul if he had made that speech
for him on the trial, “I would not be to day
here in Marseilles eating mullets.” Laughter.]
I read now in the hearing of the Senate the
decision of Chief Justice Marshall in the case

of Marbury vs. Madison, touching this alleged
obligation of the heads of Departments to take

the United States upon any question touching

the will of the Executive as their law.

the liability of the President to answer upon

shall says on page 158 of I Cranch :

Mar

impeachment by the people's IRepresentatives

“It is the duty of the Secretary of State to conform

at the bar of the Senate. What excuse, there

to the law, and in this he is an officer of the United
States, bound to obey the laws. He acts in this re

fore, I ask, is there for the pretense that the
President may set aside and dispense with the
execution of the laws, all or any of them, en

spect, as has been very properly stated at the bar,
under the authority of law and not by the instruc
tions of the President.”

If he should disobey the law. does it not
acted by the Congress under the pretext of
defending the Constitution by invoking a judi logically result that the President's commands
cial inquiry in the courts of the United States.

Be it known, Senators, that but two ques
tions which by possibility could become the
subject of judicial decision, have been raised
by the learned and astute counsel who have
attempted to make this defense. The first is
that the heads of Departments are the mere

registering secretaries of the President of the

cannot excuse him ; that the people might well
depose him from his office whether the Presi
dent willed it or not? It only illustrates the
proposition with which I started out, that
neither the President nor his Secretaries are
above the Constitution or above the laws which

the people enact.

As for the other proposition, Senators, at

United States, and are bound to recognize his tempted to be set up here for this accused and
will as their sworn duty. I deny that propo guilty President, that he may, with impunity,
sition; and I think that the learned gentieman under the Constitution and laws of the United
from New York did well, remarkably well, as States, interpret the Constitution and sit in
he does everything well, to quote in advance judicial judgment, as the gentleman from Massa
for our instruction when we should come to

reply to him upon this point, those divine
words of the great Apostle to the Gentiles,
wherein he speaks of charity as long patient
and suffering. It required a charity, Senators,

broader than the charity of the Gospel, to sit
patiently by and hear these gentlemen invoke
the decision of the Supreme Court upon either
of the questions involved in this issue, when
we knew that these gentlemen, overflowing as
they manifestly are with all learning, ancient
and modern, the learning of the dead as well

as the learning of the living, knew right well

chusetts [Mr. Curtis] urged it, upon the valid
ity of your laws, that question has also been
ruled in the Supreme Court of the United
States, and from that hour to this has never
been challenged. Although an attempt was
made to drag the illustrious name of the Chief
Justice who presides, under the Constitution,
at this moment over this deliberative and judi

cial assembly, to their help, it was made in
vain, as I shall show before I have done with
this argument. I say that the position assumed
for the President by all his counsel that he is
to judicially interpret the Coustitution for him.

9
self; that he is to judicially determine the
validity of laws, and execute them or suspend
them and dispense with their execution at his
and defy the power of the people to
oring him to trial and judgment, was settled
against him thirty years ago by the Supreme

|...".

Court of the United States, and that decision

has never been questioned since by any authori

so in his concluding argument for the accused
he attempted to fortify against such conse

quences by calling to his aid the decision of
the present Chief Justice in what is known as
the Mississippi case. With all respect to the
learned ex-Attorney General, and to all his
associates engaged in this trial, I take it upon
me to say that the decision pronounced by his

tative writer upon your Constitution or by any

honor the Chief Justice of the United States

subsequent decision in your tribunals of justice.

in the Mississippi case has no more to do with
the question involved in this controversy than
has the Koran of Mohammed, and the gentle
man was utterly inexcusable in attempting to
force that decision into this case in aid of any
such proposition as that involved in this con
troversy, and made, as I shall show before I
have done with it, directly by the President
himself in his answer, as well as by the lips of

I read, in the first place, the syllabus as collated
by the reporter [Mr. Worthington] from the
report itself, and then I will read the decision
of the court.

It is the case of IKendall vs. the

United States, 12 Peters.

In the syllabus it is

stated that—

“By an act for the relief of the relators in the case
the Solicitor of the Treasury was directed to audit
their claims for certain services, and the Postmaster
General was directed to credit them with the suum

thus found due: The Postmaster, General upon the
settlement of the claim by the Solicitor credited the
relators with a part of the amous it found due, but
refused to crediº-them with the remainder.
whº tº n

his retained counsel.

What did his honor the Chief Justice decide

in the Mississippi case ? Nothing in the world

but this, as is well known to every lawyer in

Court, Justice Thompson pronounced the uni

America, even to every student of the law
versed not beyond the horn-books of his pro
fession, that where the law vested the Presi
dent with discretionary power his judgment in
the exercise of his discretion, under the law,
until that judgment was overruled by the legis

ted judgment of the court as follows:

lative power of the nation, concluded all par

damnus was applied for and issued by the circuit court

of the District, whereupon the Postmaster, General
brought the case before the Supreme Court by a writ
of error.”

Upon the hearing of that case in the Supreme
“It was urged at the bar that the Postmaster Gen
eral was alone subject to the direction and control of

the President with respect to the execution of the
duty imposed upon him by this law; and this right

of the President is claimed as growing out of the
obligation imposed upon him by the Constitution, to
take care that the laws be faithfully executed. This

is a doctrine that cannot receive the sançtion of this
court. It would be vesting in the President a dis
pensing power. which has no countenance for its sup

port in any part of the Constitution, and is asserting
a principle which, iſ carried out in its results to all
cases falling within it, would be clothing the Presi
dent with a power entirely to control the legislation

# Congress and

paralyze the administration of jus

lce.

“To contend that, the obligation imposed on the
President to see the laws faithfully executed implies
a power to forbid their execution, is a novel con
struction of the Constitution, and entirely inadmis
sible.”–12 Peters, p. 612.

I ask you, Senators, to consider whether I
was not justifiable in saying that it was a tax
upon one’s patience to sit here and listen from
day to day and from week to week to these

learned arguments made in defense of the Pres
ident, all resting upon his asserted executive
prerogative to dispense with the execution of

the laws and protect himself from trial and
conviction before this tribunal, because he said

that he only violated the laws in order to test
their validity in the Supreme Court, when that

court had already decided thirty years ago that
any such assumed prerogative in the President
enabled him to sweep away all the legislation

of Congress and prevent the administration of
ustice itself, and fºund no countenance in the

ties. We agree to it. The learned Senator
from New York, who honors me with his atten

tion, [Mr. CoNKLING, J knows that before he
was born that question was decided precisely
in the same way in the great State which he
so honorably represents here to-day, and is

reported in 12 Wheaton ; but it does not touch
this question at all, and the proposition is
so foreign to the question that it is like one
of those suggestions referred to by Webster
upon one occasion when he said to make it to
a right-minded man is to insult his intelli

gence... I read, however, from the opinion of
the Chief Justice, and in reading from it I
wish to be understood that I agree with every
word and letter and syllable which the Chief
Justice uttered; but it does not touch this ques

tion. The Attorney General, in citing, prefaced
it with these words:

“It is sufficientupon this point to cite a late opinion
of the Supreme Court of the United States, in what
is called, the Mississippi injunction case, decided
April, 1867. Mr. Chief Justice Chase, delivering the
opinion of the court, says:

“. It is assumed by thecounsel for the State of Mis
sissippi that the President in the execution of the
reconstruction acts is required to perform a mere

ministerial duty... In this assumption there is, we
think, a confounding, of the terms ministerial and

executive, which are by no means equivalent in im
port. . A ministerial duty, the performance of which
imay, in proper cases, be required of a head of a De
partment by judicial process, is one, in respect to
which nothing is left to discretion. It is, a simple,
definite duty, arising under conditiºns admitted or
proved to exist, or imposed by law.’”

onstitution? I suppose, Senators, that the
learned ex: Attorney General thought that there
was something here that might disturb the har
mony and the order of their argument in this

After citing some cases of merely ministerial
duty, the Chief Justice proceeds as follows:

decision of Kendall vs. the United States, and

inent. The law required the performance of a single,

“In each of these cases nothing was left to discre

tion. There was no room for the exercise of judg

I0
specific act. and that nerformance, it was held, might
be required by mand'ſ mus. Very different is the duty
of the President in the oxercise of the power to see

that the laws are faithfully executed, and among the
laws the acts named in the bill.”

What acts?

The reconstruction act that

vested him with a very large discretion to the

self in his answer and assumed for him by his
counsel in his defense; and the assumption
conflicts with all that I have already read from
the Constitution, with all that I have already
read of its judicial interpretation and construc
tion ; and it conflicts as well with all that re
mains of the instrument itself.

hurt of the nation:

It is useless

“The duty thus imposed on the President is in no

to multiply words to make plain a self-evident

just sense ministerial. It is purely executive and

proposition; it is useless to attempt to imply
this power in the President to set aside and |.
pense with the execution of the laws in the face
of the express words of the Constitution, that
“all legislative power granted by this Consti
tution shall be vested in a Congress which shall
consist of a Senate and a House of Represent
atives,” that he shall be sworn “faithfully to
execute the office of President,” and therefore

political. An attempt on the part of the judicial
department of the Government to enjoin the perform
ance of such duties by the President might be justly
characterized, in the language of Chief Justice Mar
shall, as an “absurd and excessive extravagance.” It
is true that, in the instance before us, the interposi
tion of the court is not sought to enforce action by the
executive under constitutional legislation, but to
restrain such action under legislation alleged to be
unconstitutional. Dut we are unable to perceive that

this circumstance takes the case out of the general
principle which forbids judicial interference with the
exercise of executive discretion.”

faithfully to discharge every obligation which

What on earth has that to do with the ques

which obligations is thus written on the very
fore front of the instrument, that he shall take
care that the laws enacted by the people’s rep

tion in issue here 2 I may have occasion, Sen
ators, and you will pardon me if I avail myself
of the opportunity, to say that the law which
is called in question here this day leaves no
discretion whatever in the Executive, and, in

the language of his honor the Chief Justice,
imposed upon him a plain unequivocal duty,
about which he was not even mistaken him

self. , I count myself, therefore, justified, even
at this stage of my argument, in reiterating
my assertion that the decision in the Missis
sippi case has nothing whatever to do with the
principle involved in this controversy, and that
the President has no excuse whatever for at

tempting to interfere with and set aside the

lain mandates and requirements of the law.
There was no discretion left in him whatever;
and even his counsel had not the audacity to
argue here before the Senate that the act of

1867 which is called in question by this Ex
ecutive, who has violated its provisions, dis
pensed with its execution, and defied its
authority, left any discretion in him. The point
they make is that it is unconstitutional and no

law; and that is the very point settled in Ken
dall vs. the United States, that the power

yested in the President “to take care that the

the Constitution enjoins, first and foremost of

resentatives in Congress assembled shall be
faithfully executed—not some of the laws; not
the laws which he approves; but the laws shall
be executed until the same shall have been

duly repealed by the power that made them or
shall have been constitutionally reversed by the
Supreme Court of the United States acting
within the limitations and under the restrictions
of the Constitution itself.

We have heard much, Senatºrs, in the pro
gress of this discussion, about the established

custom of the people of this country; we have
heard much about the long-continued practice
of eighty years under the Constitution and
laws of the United States.

You have listened

in vain, Senators, for a single citation of a
single instance in the history of the Republic
where there was an open violation of the writ
ten law of this land, either by the Executive,

by States, or by combinations of men, which
the people did not crush at the outset and put
down. That is a fact in our history creditable
to the American people, and a fact that ought
to be considered by the Senate when they come
to sit in judgment upon this case now made

laws be faithfully executed ” vests in him no

before them for the first time under the Con

power to set aside a law of the United States,

stitution of the United States, whether the
President is above the laws and can dispense
with their execution with impunity in the ex
ercise of what is adroitly called his judicial

and to direct the head of a Department to dis

obey it, and authorize the head of the Depart:
ment to plead his royal mandate in a court of
justice in excuse and justification of his re
fusal to obey the plain requirement of the law.

power of interpretation.

It is written in the Constitution that “he shall

in our early history when, by insurrection,
a certain act was attempted to be resisted
in the State of Pennsylvania, when Wash
ington took , measures promptly to crush
the first uprising of insurrection against the
majesty of the laws. The gentlemen have
attempted to summon to their aid the great

take care that the laws be faithfully executed.”
Are we to mutilate the Constitution, and for
the benefit of the accused to interpolate into
the Constitution a word which is not there and
the introduction of which would annihilate the

whole system, that is to say, that “the Presi

I need not remind Senators of that fact

dent shall take care that the laws which he ap
proves, and only the laws which he approves,

name of the hero of New Orlean .

It is

shall be faithfully executed?”

This is at last

it is fresh within the recollection of millions

the position assumed for the President by him

of the people of this country, that when the

fresh within the recollection of Senators, as

l'IXI I *PATRICH

--------

11

State of Sonth Carolina, in the exercise of
what she called her sovereign power as a.
State, by ordinance attempted to set aside
the laws of the United States for the collec·
tion of customs, the President of :he United
States, Andrew Jackson, not unmindful of
his oath-although the law was distasteful
to him, and it is a fact that has passed into
history that he even doubted its constitution·
e.lity-yet, nevertheless, issued his proclama·
tion to the insurgents, and, lifting his hand,
swore" by the Eternal the Union must and
shall be preserved." There was no recog·
nition here of the right either in himself or in
.a St.ate to set aside the laws.
Gentlemen, there is a cnse still fresher within
the recollection of Senators, and �till fresher
in the recollection of the people of·this coun·
try, that attests more significantly than any
other the determination of the people to abide
by their laws enacted by their Congress, what·
ever the law muy be and however odious it
may he. The gentleman from New York-else
I might not have alluded to it in this discus·
sion-took occasion to refer to the fngitive
slave law of 1850; a law which was disgrace·
fol, (and I say it with all respect to the Con·
gress that entlCt.ed it;) a law which was in di­
rect violation of the letter and the spirit oft he
Constitution; a law of which I can say, at
least, although I donbt mnch whether the gen·
tieman from New York can say as much, that
it never found an advocate in me; a law of
which Wehster spoke when he said, "J\Jy judg­
mental ways was, and that. is m_vopinion to-day,
that it is unwarranted 1,y the Constitution;" a
law which offered n hrihe out of the C'Ommon
Treasury of the nation to e"ery magistrate who
sat in jmlgment upon the right of a flying bond·
man to that liberry which wns his by ,·irtue of
that same creative energy which breathed into
his nostrils the breath of life and he beC'nme
a living Roul; a law which offered a reward to
the miuistns of justice to shorten the judg­
ment of the poor; a law which, smiting the
conscience of the American people and the
conscience of the civilized world, made it a.
crime to give shelter to the bouseless, and, in
obedience to the utterances of our di\'ine l\Jas·
ter, to give a cup of water to him that was
ready to perish; a law enacted forthe pnrpose of
sustaining that crime of cri111es, that sum of all
villainies, which made merchandise of immor­
tality, which transformed a man into n chattel,
a thing of trade, which, for want of a better
word, we call a elo.ve, with no acknowledged
rights in the present, with no hope of a heri·
t.agP in the l?reat. hl'rPnnn, to whose darken Pd
soul, under his crushing bondage, the unfrerse
wus \'OiCC'less, and God hi rnsPlf" seemed silent;
a law ul\der the direct operation of which that
horrihlt> h-ngedy wns euact.ed. my good sir, [nd·
dressing �h.._Groesbeck,] witl,in onr own nohie
Commonwea\th, in the streets of your heauti­
ful city, (Cinchrnati,) wbeo Margun·t Garner,

with her babe laslied upon her breast, pursued
by the officers by virtue of this law, in her wild
frenzy forgot her mother's affection in the joy
she felt in sending, before its appointed time,
by her own hand, tbe spotless 8ptrit of her child
back to the God who gave it rather than to
allow it to be to,·sed back into this bell of lru·
man bondage under the operation of American
law; a law sustained by the American people
even on that day when Anthony Burns walked
in chains under the shadow of Bunker Hill,
"where every sod's a soldier's sepulcher,"
and where sleeps tbe first·great martyr in tbe
cause of American independence, to be tried
hy a magistrate in a temple of j11stice girdled
itself with chains and guarded by bayonets;
and yet the people stood by and said let the
law be executed nntil it b .. repealed.
Gentlemen talk nbout the American people
recognizing the riglrt of any Presidenl to set
aside the laws! Who does not know that two
years after this enactment, in 18G2, the terrible
blasphemy was mouthed in Bahimore by the
representatives of that same party that to-day
insists upon the executive prerogat.i"e to set
aside your laws and anuihilate your Govern·
ment, tonchiug this fugitive slave law that all
discnssi :rn in Con.!!;res� and out of Congress
should be s111,pressed "l When they ]'a�sed that
resolution they ought to have rememl>ered that
there is some1hi1ig stronger after all than the
resolutions of mere partisans in convention
:issembled. They ought to have remembered
that God is not in the eartl,quake or in the
fire, but in "the still, small voice," speaking
through the eulightened conscience of eulight·
ened men, and that it is at last omnipotent.
Rut-and I only refer to it: God knows that,
for the honor of our country, I would take a
step backward and cover the nakeduess and
shame of the American people in thut day of
America's dishonor; but when they passed
that resolution they nominated t.heir candidate,
and he accepted irs term�, and he was carried
to the presidential chair by the votes of all the
States of this Union, except four, upon the
ba�.is that he would execute the laws. however
odious they might bl!, however offensive they
might be to the judgment and conscience of
the people of the United States aud of the
civilized world.
And now, with such a record as this, these
gentlemen dare to come before the Senate and
tell the Senate that it is the traditional policy
of the American people to allow their own laws
to be defied by their own Executive. I deny
it. There is not a line in your history but gives
n flat denial to the assumption. It has 1:tvcr
been done.
In this connection, Senators, I feel con·
strained, although I deeply regret it, "to be
compelled to depart from the direct line of my
argument to notice another point tl,at was mHde
b_v the gentleman in order to bolster up this
assumption, made for the first time, as I msist,

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I2
in our history, of the right of the Executive, by
his executive prerogative, to suspend and dis
pense with the execution of the laws, and that
was the reference which was made to your
lamented and martyred President, Abraham
Lincoln. In God's name, Senators, was it not
enough that he remembered in the darkest
hours of your trial and when the pillars of your
holy temple trembled in the storm of battle that
oath which, in his own simple words, was “regis
tered in heaven,” and which he must obey on
the peril of his soul—was it not enough that
he kept his faith unto the end and finally laid
down his life a beautiful sacrifice in defense of

responsible for what necessarily resulted from
this atrocious and unmatched rebellion, I make
in the words of tilat grand and noble man, than
whom a purer, a wiser, or better spirit never
ascended the chair of civil magistracy in this or
in any country, in this age or in any age—I refer
to John Quincy Adams—when he said that
in the presence of public war, either domestic
or foreign, all the limitations of your Constitu
tion are silent, and in the event of insurrection

in any of the States, all the institutions of the
States within which it rages, to use his own
terse, strong words, “go by the board.” You
cannot prosecute war by a magistrate's war

the Republic and the laws without slandering
and calumniating his memory now that he is

rant and a constable's staff.

dead, that his tongue is mute, unable to speak

ized world in doing what he did.

for himself, by the bald, naked, and false asser

civilized world was not only my own personal

further, for I leave no part of it unanswered,
I would count myself dishonored, being able to
speak here for him when he cannot speak for
himself, if I left any colorable excuse for this
assault upon his character unanswered and
unchalienged.

friend, but he was the friend of our common
country and our common humanity. I deny

indemnity acts.

tion that he violated the laws of his country’
I speak earnestly, 1 speak warmly on this sub
ject, because the man thus slandered and out
raged in the presence of the Senate and the

that, for a single moment, he was regardless
of the obligations of his oath or of the require
ments of the Constitution.

ever violated your laws.

I deny that he

I dely that he ever

assumed to himself the power claimed by this

apostate President this day to suspend your laws
and dispense with their execution. Though
dead, he yet speaks from the grave; and I ask
Senators when they come to consider this accu

sation against their murdered President, to
ponder upon the words of his first inaugural,

Abraham Lincoln

simply followed the accepted law of the civil

I answer

Why, say the gentlemen, you passed your
Now, who is there in this

Senate of the United States so weak as not to

know that it is in vain that you pass indemnity
acts to protect the President of the United
States, if, after all, his acts were unconstitu
tional—to the hurt of private right. You
must go a step further than that ; you must
deny jurisdiction to the courts, you must shut
the doors of your temple of justice, you must
silence the ministers of the law before you
pass an indemnity act which will protect him
if his act at last be unconstitutional.

That

when manifestly alluding to the fugitive slave
law, which violated every conviction of his
nature, from which he went back with abhor

was not the purpose of the act.

rence, he yet nevertheless in that inaugural

particular credit for it. It is not unknown to
the legislation of this country and of other
countries. The Congress of the United States,

said to the American people, however much

we may dislike certain laws upon our statute
books, we are not at liberty to defy them, nor
to disregard them, nor to set them aside; but

If the gentle

man referred to the general indemnity act, I
had the honor to draft it myself.

I claim no

as Senators will remember, passed a similar

we must await the action of the people and
their repeal through the law-making power.

act in 1862. The general act to which I refer
was passed in 1867. That act was simply de
claring that the acts of the President during

I do not quote the exact words, but I quote

the rebellion and of those acting for the Presi

the substance; I doubt not they are as familiar

dent in the premises, should be a bar to prose

to the minds of Senators as they are to me.

cutions against them in the courts. What was
the object of it? If it be in the power of the
nation to defend itself, if it be constitutional to
defend the Constitution, if it be constitutional
for the President to summon the people to the

Oh, but said the gentleman, he suspended
the habeas corpus act. The gentleman was too
learned not to know that it has been settled law
from the earliest times to this hour that in the

midst of arms the laws are silent, and that it is
written in the Constitution that “the privilege
of the writ of habeas corpus shall not be sus

pended unless when in cases of rebellion or
invasion the public safety may require it.” It
was not Mr. Lincoln that suspended the habeas
corpus act; it was that great public, solemn,
civil war that covered your heavens with black
ness and filled the habitations of your people
with mourning and lamentation for their beauti

ful, slain upon the high places of the land.
Senators, the best answer that I can make to this

. . assertion that your murdered President was

defense of their own laws and the defense of
their own firesides and the defense of their

own nationality, the law said that this should
be an authority to the courts to dismiss the
proceeding, on the ground that the act was
done under, the order of the President. But
how could we make his act valid under the

Constitution if it was unconstitutional, if the
limitations of the Constitution operated 2 I do
not stop to argue the question. It has been
argued by wager of battle, and it has been

settled beyond review in this tribunal or in any
tribunal that the public safety is the highest

13
law, and that it is a part and parcel of the

learned gentleman from New York would have

Constitution of the United States.

given us more light on this subject if he had

I

I have answered, Senators, and I trust
have answered sufficiently, all that has been
said by the counsel for the President for the
purpose of giving some colorable justification
for the monstrous plea which they this day in
terpose for the first time in our history that it
pertains to the executive prerogative to inter
pret the Constitution judicially for himself and
to determine judicially the validity of every law
passed by Congress and to execute it or sus

informed us that the collector under your
revenue law had dared, under a letter of au
thority of Andrew Johnson, to set aside a

statute, and upon his own authority, coupled
with that of his chief, to ºcſy your power.
The two questions are as distinct as life and
death, as light and darkness, and no further
word need be said by me to the American Sen
ate in answer to that proposition.

. I may be pardoned now, Senators, for refer

pend it or dispense with its execution at his

ring to other provisions of the Constitution

pleasure.

which do sustain and make clear the position
I assumed as the basis of my argument, that

Mr. SHERMAN.

If the honorable Man

ager will pause at this point of the argument I

the letter of the law passed by the people's

will submit a motion that the Senate take a
recess for fifteen minutes.

Representatives in Congress assembled con
cludes the Executive. I have given you al

The motion was agreed to.

At the expiration of the recess the Chief
Justice resumed the chair and called the Sen
ate to order.

ready the solemn decision of the Supreme
Court of the United States upon that subject,
unquestioned and unchallenged from that day
to this.

I now turn to a higher and a more

Mr. Manager BINGHAM. Mr. President

commanding authority, the supreme law of the

and Senators, the last words which I had the
honor to utter in the presence of the Senate

ple, in which they have settled this question

land ordained by the people and for the peo

were to the effect that I had endeavored to

between the people and the Executive beyond

answer what had been said by the counsel for
the accused in defense of the monstrous prop
osition made for the first time in the history of
the Republic that the Executive may suspend

the reach of a colorable doubt. I refer to the

and dispense with the execution of the people's
laws at his pleasure. I beg the pardon of the
Senate for having forgotten to notice the very

Representatives and the Senate shall, before it be
come a law, be presented to the President of the Uni
ted States; if he approve, he shall sign it, but if not, he
shall return it with his objections to that IIouse in
which it shall have originated, who shall enter the
objections at large on their Journal and proceed to
reconsider it. If, after such reconsideration, two
thirds of that House shall agree to pass the bill, it
shall be sent, together with the objections, to the
other House, by which it shall likewise be recon
sidered. and if approved by two thirds of that House
it shall become a law.”
*
*
*
*
*
*

astute argument made by the learned counsel
from New York [Mr. Evarts] in behalf of the
President touching the broker who refused to

pay the license under your revenue laws, and
under the advice of the learned counsel was

finally protected in the courts. Senators, par
don me for saying again that the introduction
of such an argument as that was an insult to

the intelligence of the American Senate; it
does not touch the question, and the man who
does not º that proposition is not fit
to stand in the presence of this tribunal and
argue for a moment any issue involved in this
controversy.

provisions of the Constitution which declare
that—

“Every bill which shall have passed the House of

“If any bill shall not be returned by the President
within ten days (Sundays excepted) after it shail
have been presented to him the same shall be a law
in like manner as if he had signed it, unless the Com

gress by their adjournment prevent its return, in
which case it shall not be a law.”

I ask the Senators to please note in this con
troversy between the Representatives of the

people and the advocates of the President that

Nothing is more clearly settled, Senators—

it is there written in the Constitution so plainly

and I ought to ask pardon at every step I take
in this argument for making such a statement
to the Senate—nothing is more clearly settled

that no mortal man can gainsay it, that every
bill which shall have passed the Congress of
#. United States, and been presented to the

under the American Constitution in all its in

terpretations than that the citizen upon whom
the law operates is authorized by the Consti

resident and shall have received his signature
shall be a law; that it further provides that
every bill which he shall disapprove and return

tution to decline compliance without resist
ance and appeal to the courts for his protec

to the House in which it originated with his

tion.

That was the case of the New York

objections, if reconsidered and passed by the
Congress of the United States by a two-thirds

broker to which the learned counsel referred;

vote, shall become a law; and that every hill

and desperate must be the defense of his client
if it hangs upon any such slender thread.

which shall have passed the Congress of the

Who ever heard of that rule of universal ap

United States and shall have been presented
to the President for his approval which he

plication in this country of the right of the

shall retain for more than ten days, Sundays

citizen peacefully, quietly, without resistance,
without meditating resistance, to appeal to the

excepted, during the session of Congress, shall

courts against the oppression of the law being
applied to the sworn executor of the law The

be a law. That is the language of the Consti
tution ; it shall be a law if he approves it; it
shall be a law if he disapproves it and the Con

gress pass it over his veto; it shall be a law if
he retain it for more than ten days during the
session of Congress, Sundays excepted. In
each such case it shall be a law. It is in vain,

that at last the decision of the Supreme Court
could not control him at all; that it could not
decide any question for the departments of the
Government.

altogether in vain, against this bulwark of the

I am not disposed to cast reproach upon Mr.

Constitution, that gentlemen come, not with
their rifled ordnance, but with their small arms
laying upon it, and telling the Senate of the
łº States and the people of the United
States in the face of the plain words of the

Jefferson. I know well that he was not ºne of
the framers of the Constitution. I know well
that he was not one of the builders of the fabric

Constitution that it shall not be a law.

The

of American empire. While he contributed
much to work out the emancipation of the
American people from the control and dom

people meant precisely what they said, that it

ination of British rule and deserves well of his

shall be a law ; though the President give never

country, one of the authors of the Declaration
of Independence, yet I know well enough that
his opinions on that subject are not accepted
at this day by the great body of the American

so many reasons, by veto, why he deems it
unconstitutional, nevertheless, if Congress by
a two-thirds vote pass it over his veto, it shall

be the law. That is the language of the Con

people and find no place in the authoritative

stitution.

and commanding writers upon the text of your
Constitution.
e was a man, doubtless, of
fine philosophic mind; he was a man of noble,

What is their answer? “It is not to be a law

unless in pursuance of the Constitution.” An

unconstitutional law, they say, is no law at all.

patriotic impulses; he rendered great service

We agree to that; but the executive—and that
is the point in controversy here—is not the
department of the Government to determine

to the country and deserves well of his country
men; but he is not an authoritative exponent

of the principles of your Constitution, and never

that issue between the people and their Rep

Was.

resentatives; and the man is inexcusable, ab
solutely inexcusable, who ever had the advan
tage of common schools and learned to read

-

I may be pardoned further, in passing, for
saying in connection with this citation that is
made here, right in the face of the answer of

the plain text of his native vernacular, who dares

the accused, that his only object in violating

to raise the issue in the light of the plain text
of the Constitution that the President, in the
face of the Constitution, is to say it shall not
be a law, though the Constitution says expressly

the law was to have a decision of the Supreme
Court on the subject, that another distinguished
man of the Democratic party standing in his
place in the Senate years ago, in the contro
versy about the constitutionality of the United
States Bank, afterward lified to the Presidency
of the United States, declared in his place here
that while he should give a respectful consider
ation to the decision of the Supreme Court of

IT SIIALL BE A LAW.

I admit that when an

enactment of Congress shall have been set

aside by the constitutional authority of this
country it thenceforward ceases to be law,
and the President himself might well be pro
tected for not thereafter recognizing it as law. I
admit it, although gentlemen on that side of the
Chamber will pardon me—and surely I make
the allusion for no disrespectful purpose what

ever—I say it rather because it has been pressed

the United States touching the constitutionality
of an act of Congress, he should nevertheless,
as a Senator upon his oath, hold himself not
bound by it at all. That was Mr. Buchanan.
One thing is very certain: that these author

ities quoted by the gentlemen do sustain in
ing that it was the doctrine taught by him who is some sort, if it needed any support at all, the
now called the great apostle of Democracy in position that I have ventured to assume before
America, that the Supreme Court of the Uni the Senate, that upon all trials of impeachment
ted States could not decide the constitutional presented by the House of Representatives the
ity of a law for any other department of this Senate of the United States is the highest judi
Government; that they only decide for them cial tribunal of the land, and is the exclusive
selves and the suitors at their bar. For what judge of the law and fact, no matter what any
earthly use the citation from Jefferson was in court may have said touching any question
troduced by the learned gentleman from Ten involved in the issue.
Allow me, Senators, now to take one step
messee, [Mr. Nelson,] who first referred to it,

into this controversy on the other side, in say

and by the learned Attorney General, I cannot
for the life of me comprehend in the light of
the answer here interposed by the President.
He tells you, Senators, by his answer that he
only violated the law, he only asserted this

executive prerogative, that would cost any
crowned head in Europe this day his life, in

further in this argument touching this position

of the President, for I intend in every step I

take to stand with the constitution of my coun:
try, the obligations of which are upon me as
a representative of the people. I have already
in your hearing cited a text from the Constitu
tion which ought to close this controversy be:

nocently for the purpose of taking the judg

tween the people and the President as to his

ment of the Supreme Court; and here comes
his learned advocate from Tennessee, and his

learned advocate, the Attorney General, quot

right to challenge a law which the Constitution
declares is a law and shall be a law despite his
veto. The other provision of the Constitution

ing the opinion of Thomas Jefferson to show

to which I refer is that provision which defines

15
and limits the executive power of the Presi

dent.

I refer again to the words of the Con

stitution:

United States, under the Constitution, when
that Constitution expressly declares that all
legislative power granted by this Constitution

“The President shall be Commander-in-Chief of

shall be vested in Congress, and that all judi

the Army and Navy of the United States, and of the

cial power shall be vested in a Supreme Court
and in such inferior courts as the Congress may
by law establish, subject, nevertheless, to the
limitations and definitions of power embraced
in the Constitution itself? The assumption

militia of the several States, when called into the
actual service of the United States; he may require
the opinion; in writing, of the principal officer in
each of the Executive Departments upon any subject
relating to the duties of their respective offices, and

he shall have power to grant reprieves and pardons
for offenses against the United States, except in cases

upon which the defense of the President rests,

of impeachment.
“IHe shall have power, by and with the advice and
consent of the Senate, to make treaties, provided
two thirds of the Senators present concur: and he
shall nominate, and by and with the advice and con

judicial power in direct contravention of the

sent of the Senate shall appoint, embassadors, other

express words of the Constitution.

public ministers and consuls, judges of the Supreme
Court, and all other officers of the United States,
whose appointments are not herein otherwise pro

vided for, and which shall be established by law;

but the Congress may by law vest the appointment
of such inferior officers as they think proper in the
President alone, in the courts of law, or in the heads
of Departments.
“The President shall have power to fill up all va
cancies that may happen during the recess of the

Senate, by granting commissions which shall expire
at the end of their next session.
“He shall from time to time give to the Congress
information of the state of the Union, and recorn
mend to their consideration such measures as he
shall judge necessary and expedient; he may, on
extraordinary occasions, convene both Houses, or
either of them, and in case of disagreement between

them, with respect to the time of adjournment, he
may adjourn them to such time as he shall think

proper,” &c.

that he shall only execute such laws as he ap
proves or deems constitutional, is an assump
tion which invests him with legislative and

f the President may dispense with one act

of Congress upon his own discretion, may he
not in like mannér dispense with every act of
Congress? I ask you, Senators, whether this
conclusion does not necessarily result, as ne

messarily as effect follows efficient cause ? If
not, pray why not? Is the Senate of the Uni
ted States, in order to shelter this great crim
inal, to adopt the bold assumption of unre
stricted executive prerogative, the wild and

guilty fantasy that the king can do no wrong,
and thereby clothe the Executive of the Amer
ican people with power to suspend and dis
pense with the execution of their laws at his
pleasure, to interpret their Constitution for

himself, and thereby annihilate their Govern

These are the specific powers conferred on
the President by the Constitution. I shall have
occasion hereafter in the course of this argu
ment to take notice of that other provision
which declares that the executive power shall
be vested in a President. It is not a grant of

power, however, I may be allowed to say in

º to the President, and never was so held
y anybody in this country. The provisions
of the Constitution which I have read grant to
the President of the United States no legisla

ment?

Senators, I have endeavored to open this
question before you in its magnitude. I trust
that I have succeeded. Be assured of one thing,
that according to the best of my ability, in the

presence of the Representatives of the nation,
I have not been unmindful of my oath; and I
beg leave to say to you, Senators, this day, in

all candor, that, in my judgment, no question
of mightier import was ever before presented
to the American Senate, and to say further,
that no question of greater magnitude ever can
come by possibility before the American Sen

tive nor judicial power. Both of these powers,
legislative and judicial, are necessarily involved
in the defense this day attempted to be settp ate, or any question upon the decision of which
by the Executive; first, in the words of his own
counsel, that he may judicially interpret the
Constitution for himself and judicially determ

ine upon the validity of every enactment of
Congress; and second, in the position assumed
by himself, and for which he stands charged
here at your bar as a criminal, to repeal—I use
the word advisedly and considerately—to re

peal by his own will and pleasure the laws

enacted by the Representatives of the people.
This power of suspending the laws, of dispens:
ing with their execution until such time as it
may suit his pleasure to test their validity in

the courts, is a repeal for the time being, and,

º

the Senate, may last during
his natural life, if so be the American people
if it be sustained

should so long tolerate him in the office of
Chief Magistrate of the nation. Why should I

greater interests necessarily depend.
In considering this great question of the
power of the President by virtue of his execu
tive office to suspend the laws and dispense
with their execution, I pray you, Senators,
consider that the Constitution of your coun
try, essential to our national life, cannot exist

without legislation duly enacted by the Repre
sentatives of the people in Congress assembled
and duly executed by their chosen Chief Magis
trate. Courts, neither supreme nor inferior,
for the administration of justice within the
limitations of your Constitution, can exist
without legislation. Is the Senate to be told
that this Department of the Government, es

sential to the peace of the Republic, essential
to the administration of justice between man
and man, those ministers of justice who, in the

stop to argue the question whether such a simple oath of the purer days of the Republic,
power as this, legislative and judicial, may be

were sworn to do equal justice between the

rightfully assumed by the President of the

poor and the rich, shall not aduminister justice

PIX! I *PATRIOT

------�------·-

10

._
at nll if perchance the Presiclent of the Uni­
tecl Stales muy choose, when the Congress
.:?<lines to enact a la IV for the organization of
the jucliciary, and e11act it even despite l,is ou·
jections to the contrnry in accordauce with the
Co11stit.ntion Ly u. tw,1- thirds vote, to cleclaretbu.t
al'corcling to his judgment and hi11 convictions
it violates the Constitution oft.be country, and
tberefure it shall not Le put into execution 'l
S<'nntnrs, if he has the power to sit in judg·
meut judicially-aud I use the word of his
advocate-upo11 the tenure-of-ot6ce 11ct of1867,
he has like puwer to sit in judgment judicially
upon every other ttct of Co11gress ; aml in the
eve11t. of the President of the United States
interferin� with the execution of a judiciary
act estuhlisl,ing fort he first tii,ie, ifyou please,
in your hi�tory, or for the second time, if you
pJ.,ase, ii lJy some stran�e intervPntion of Provi·
dence the existing juJges should pnish from
the enrth, I would like to know wuat becomes
of thi� naked ancl bald pr�tense ( unfit to be
played with 1,y children, much les, Ly full-grown
men) of 1.he l'reside11t, that ha only \'iolate� the
laws i11nocently and harmlessly, to have the
quest ion decid,!d in the courts, when he arro·
gates to him,elf the power to prevent any court
sittin� iu judgu,ent. upon the quest.ion'!
lt .. presentatives to the Congress of the Uni•
ted ::ita1.e:1 c>11111ot be chosen without legisla·
tion; first, the legislation oft.he Congress ap·
portio11i11g representation among the Revera!
:::Otates 11ccording 10 the whole numuer of r<'pre·
se11tative popu!aiion in euch; und secoml, an
e11act111P11t either of t.he Congress or of the
Legisla111res of the several S1a1es fixi11g the
time, place. a11d manner of holding the elcc·
ti,,1111. ls it possihle that the President of the
Unitrd States, in the event. ofsuch legislation
by the Congress, clearly authorized by the very
ter11111 of the Co11stitutiou, and esseut.ial to the
very existe11ce of the Government, is permit­
ted, in the exercise of hiR judicial executive
an1.hori1y, tu sit. in judgment. upon your stat.ute
a11d �av that it shall not be executed 'l This
power given uy your Constirution to the Con­
gress to pre�crilJe the time and ph1ce and man·
11er of holding elections fur ltepresentatives in
Congress in the several States, and to alter as
well 1he provisions of the State Lt>gislatures,
in the words ofone ofthe framers of the Con·
st itut.iou, was put iuto the instrument to enable
the people through the national Legislat.ure to
pPrpetuate the legislative department of their
own Government in the event ofthe defection
of the S1ate Legislatures; and we are to ue
told hl're. and we ore to d,diberate upon it from
day t.o day and from week to week, that the
PresidPnt of the United Stales is, by virtue of
his executive otlice and his execut.ive preroga·
tive, clotht,d with the authority to determine
the validity of your law and to suspend it auJ
diapl'u•e with its execution at�11ltmsure.
Again. a Presirlent of the United 8tat.es to
execute the laws of the pl'ople e11acted by their
Representatives in Congress assembled, can·

not be chosen without legislation. Are we
again to Le told that the President at every step
is vested wi1h authority to dispense with the
execution ofthe law and to suspe11d its opera·
tiou till h_e can have a decision, if you please,
in the courts ofjustice? Hevenue cannot be
raised, in t.he words of the Constitution, to
provide for the common defense and general
welfare without legislation. ls the President
to intervene with his executive prerogative to
declare that your revenue laws do not meet his
approval, au<l in the exercise of his independent
coordinate power as one of the dcp11rtme11ts oC
this Gcwerument chooses to suspend the law
and di8pense with its execution? If the Pres·
ident may set aside all laws and suspend their
execution nt pll'asure, it results that he may
annul the Constitution and annihilate the Gov•
ernment, and that is the issue hefore the Amer•
ican Senate. l do not go outside ofhis answer
to establish it, as I shall show Lefore I h:1ve
<lone with this controverl\y.
The ConMtitution itself, according to this
assumption, is at his mercy, as well as the laws,
and the people of the United States are to
stancl by aml be mocked and deride,! in their
own Capitol when, in accordance with th!! ex•
press provision of their Constitution, they bring
him to the bar of the Senalt, to answer for such
a crime than which none greater ever was com­
mitted si11ce the day when the first crime was
committed npon this planet as it sprnng from
the hand of the Creator; that crime which cov·
ered one manly brow with the nshy paleuess
Rnd terrihle Leauty of deat.h, and a11nther with
: the damning blotch of fratricide. The people
are not to be answered at this bar t'liat it is in
vain that they have put rnto the bands oftheir
Representatives the power to impeach such a
malefactor, and l,y the express words of their
Co11�1itution they ha\·e put the power into the
handd of the Senate, the exclusive power, the
sole power to try him for his high crimes and
mi8'1emeanors.
The- quedtion touches the nation's tire. Ile
it known, Senators, that your matchless con·
stitution of go,·ernment, the hope of the strug·
ling friends ofliberty in all lands. and for the
perpetuity and the triumph of which millions­
of hands are lifted this day in silent prayer to
the God of nations, can 110 more exist without
laws duly enacted by the law-making power
of the people than can the people themselves
exist without air or without that bright heaven
which bends ahove us filied wit.h the life-giving
hreath of the Almighty. A Constitution Hnd
laws which are uot and cannot be enforced are
dead. The vital principle of your Con8t.itution
and laws is that they shall be the supreme law
of the land-supreme in ever1 State, supreme
in every Terr;tory, supreme rn every rood of
the ltepublic, supreme upon everydl'ck covered
Ly your flag. in every zone ofthe globe. And
yet we are dt•b11ti11g here to-day whether n man
whose Lreath is in bis nostrils, the mere ser·
vant of the people, ma1 not suspend the exe

Digitized by

Goog Ie

17
cution both of the Constitution and of the laws

That common-law offenses are indictable in

at his pleasure, and defy the power of the
people. The determination, Senators, of all

the District has been settled by the courts of

the District and by the Supreme Court. In the

these questions is involved in this issue, and
it is for the Senate, and the Senate alone, to

cuit court of the District ruled—

decide them and to decide them aright.
I have dwelt, thus long upon this point be
cause it underlies the whole question in issue
here between the President and the people,

of the District the Uuited States have a criminal
common law and the court has criminal common-law
jurisdiction.”

and upon its determination the decision of the
whole issue depends. If I am right in the

sition that the acts of Congress are law,
inding upon the President and to be executed
by him until repealed by Congress or actually
reversed by the courts, it results that the will

ful violation of such acts of Congress by the
President and the persistent refusal to execute
them is a high crime or misdemeanor, within
the terms of the Constitution, for which he is

impeachable, and of which, if he be guilty, he
ought to be convicted and removed from the
office that he has dishonored.

It is not need

United States vs. Watkins, 3 Cranch, the cir
“In regard to offenses committed within this part.

And in the case of the United States vs. Ken

dall, before referred to in 12 Peters, 614, the
court ruled:
“That the common law as it was in force in Mary
land when the cession was made remained in force
in the District.”
-

It is clear that the offenses charged in the
articles, if committed in the District of Colum
bia, would be indictable, for at the common
law an indictment lies for all misdemeanors

of a public evil example, for neglecting duties
imposed by law, and for offenses against com
mon decency, 4 Bacon's Abridgement, page

ful to inquire whether only crimes or misde

302, letter E.

meanors specifically made such by the statutes
of the United States are impeachable, because
by the laws of the United States all crimes

This is all, Senators, that I deem it import
ant at present to say upon the impeachable
character of the offenses specified in the arti
cles against the President further than to re

and misdemeanors at the common law, com
mitted within the District of Columbia, are
made indictable. I believe it is conceded on

every hand that a crime or misdemeanor made
indictable by the laws of the United States,
when committed by an officer of the United
States in his office, in violation of his sworn
duty, is a high crime and misdemeanor within
the meaning of the Constitution. At all events,

if that be not accepted as a true and self evident
proposition by Senators, it would be in vain
that I should argue further with them. And I
might as well expect to kindle life under the
ribs of death as to persuade a Senate, so lost
to every sense of duty and to the voice of rea
son itself, which comes to the conclusion that
after all it is not a high crime and misde

meanor under the Constitution for a President
of the United States deliberately and purposely,
in violation of his oath, in violation of the plain
letter of the Constitution that he shall take care

mark that although the question does not arise
upon this trial for the reasons already stated,
a crime or misdemeanor committed by a civil
officer of the United States not indictable by
our own laws or by any laws, has never yet
been decided not to be impeachable under the
Constitution of the United States; nor can

that question ever be decided save by the Sen
ate of the United States. I do not propose to
waste words, if the Senate please, in noticing
what but for the respect I bear him I would
cail the mere lawyer's quirk of the learned
counsel from Massaehusetts upon the defense

[Mr. Curtis] that even if the President be
guilty of the crimes laid to his charge in the
articles presented by the House of Iłepresent
atives, they are not high crimes and misde
meanors within the meaning of the Constitu

tion, because they are not kindred to the great

the statute, for I believe it was

crimes of treason and bribery. It is enough,
Senators, for me to remind you of what I have
already said that they are crimes which touch
the nation's life, which touch the stability of
your institutions; they are crimes which, if
tolerated by this highest judicial tribunal in

read by my associate, [Mr. Manager Bout

the land, vest the President, by solemn judg

that the laws be faithfully executed, to set the
laws aside and defiantly declare that he will
not execute them.

Senators, I refer in passing, without stop

.# to read

well,] to the act of February 27, 1801, (2

ment with the power under the Constitution to

Statutes-at-Large, 103, 104,) which declares
that the common law as it existed in Maryland

suspend at pleasure all the laws upon your
statute-book, and thereby overturn your Gov.

at the date of the cession shall be in force in the

ernment.

District.

crimes, and crimes of such magnitude that
they have cost the perpetrators their lives—not

I refer also to 4 Statutes-at-Large,

page 450, section fifteen, which declares that
all crimes and offenses not therein specific

ally provided for shall be punished as there
tofore provided, referring to the act of 1801.

They have heretofore been held

simply their offices, but their lives. Of this I
may have more to say hereafter.
But I return to my proposition. The defense

I refer also to 12 Statutes-at-Large, page 763,
section three, which confers jurisdiction to

of the President is not whether indictable

try all these offenses upon the courts of the

it rests upon the broad proposition, as already
said, that impeachment will not lie against him

District.

crimes or offenses are laid to his charge, but

l'IXI I *l';\l RIOI

18

for uny violation of the Constitution and laws
because of his asserted constitutionai right to
judicially interpret eve7 provision of the Con­
stiLUtion for him�elf, and also to interpret for
hims .. If the validity of e,·ery law and execute
or disregard upon his election any provision
of either the Constitution or the laws, espe·
cially if he declare at or after the fact that his
only purpose in violating the one or the other
was to have a true construction of' the Consti­
tution in the one case and a judicial determ­
ination of the vali lity of the law in the other,
i11 the courts of the United States.
Tl,at I do not state this as the position of
the President too strongly, I pray 8enators to
notice what I now say, for I would count my­
self a dishonored man if purposely here or
elsewhere I should misreprefent the position
assumed by the President. The counsel for
the President (:\Ir. Curtis] in his o enii:ig at·
tempts to gainsay the statement as r have just
made it, that the defense of the President rests
upon the assi.mption as stated in his answer.
The connsel, in the opening, s:ates, that-I
quote his words from page 382, and they were
qualified by none of his associates who fol­
lowed him; the statement was considerately
made; he meant precisely what he said, as
follows:

"But when. Senators. the question arises whether
I\ 'irticu lnr law 1111.s cut off a power coutide,l to him
(I.f.,e President) by the people through th� Constitu­
tion, anti he alone can roise that question. nud he
nlonc can cau�e n. jud!cia.l decision to come between
the two bmnches of the Govcrnmel\t to sny which
of them is right. and nftcr due delibcrntion with the
uddce of those who arc his proper ad,·iscrs, he settle�
down firmly upon the opinion that such is tho char·
l\cter of the law"-

That is to sav, that it is unconstitutional,
that it cuts off,; power confided to him by the
people.. it reml\ins to be decided by you whether there is
any violation of bis duty when he takes the needful
stctJS to raise that question and have it peacefully
uccided in the courts."

I ask, Senators, in all candor, if the President
of the United States, by force of the Consti­
tution, as the learned counsel ar�ue, is vested
with judicial authority thus to rnterpret the
Constitution and decide upon the validity of
any Jaw of Congress upon tl,is statement of
counsel as I have just read it from the report
now before you and upon your tables, what is
there to hinder the President from saying this
of every law of the land; that it cuts off some
power confided to him by the people?
Senators, tbe learned gentleman from Mas­
sachusetts was too self-poised; he is, mani­
festly, too profound a man to launch out upon
this wild, stormy sea of anarchy, careless of
all conseqnences, in the manner in which some
of his assoeiates did. You may remember­
and I qnote it only from memory, but it is
burned into my brain, and will only perish
with my life-you remember the utterance of
the gentleman from New York, not so careful
of his words, who before you said, in the pro­
gress of his argument, that the Constitution bad

invested the Pre�ident with the power to gnard
the people's rights against congressional en­
croachments. You remember that as be pro·
gre�sed in bis argument he ventured upon the
further assertion in the presence of the Senate
of the United States, and so you will find it
written doubtless in the report, that if you
dared to decide against the President upon this
issue, the IJUestion would be raised before the
people under the banner of the supremacy of
the Constitution in defense of the President,
and the omnipotence of Congress upon the
other; the supremacy of the Constitution would
be the sign under wbich the President was to
conquer against the omnipotence of Congress
to bmd him by laws enacted by themselves in
the mode prescribed by the Constitution.
Senators, I may be pardoned for summoning
the learned counsel from .Massachusetts as a
witness against the assumption of bis client,
and against the assumption of his associate
counsel, touching this power of the Presiden,
to dispense with the execution of the laws. In
1862 there was a pamphlet issued bearing the
name of the learned gentleman from Massa·
chusetts touching tbe limitations upon execu·
tivepower imposed by the Constitution. I read
from that pamphlet, and pledge myself to pro·
duce the original, so that it may he inspected
by the Senate. I regret that my reporter has
not brought it into the court. It shows the
difference between the current of a learned
man's thoughts when he speaks for the people
and according to his own convictions, and the
thoughts of the same learned man when he
speaks for a retainer:

"b'xecutfoe Po,oer," bv B. R.O.,rli,.: Cambrid{]e.1862.
"Dedicated-'" To nil persons who hove sworn to
supoort the Constitution of tho United St,ites. nnd to
all citizens who value the principles of ci1·il liberty
which that Constitution embodies, an,l for the prescr·
votion of which it is our only security. these pagoa
are respectfully dcdicn.ted"-by the Author.
"Tho President is the Commander-in-Chief of the
Army and Navy. not only by force ofthe Constitution,
but under and subject to the Constitution. and t o
every restriction therein contained, and t o e,·ery lnw
ennctcd by its authorKY, RS completely and clenrly
as the private in the rnnks. Heu General-in-Ch.it/.
but can a General-in-Chief di•obe11 ,my law of hi• own
countrv 1 lH.en he can he auperndda to hi, rinht• a,
commander the powers of a ttBUrper,• ,md thnt i11 111il­
trrrv de8'J)otiam ·" •


• .. the111ereauthor­
it11 to command an armv i• not an authorit11 to diaobet1
the Latos of the cou11tr11."

The President bas only executive power, not
legislative, not judicial. The learned counsel has
learned that word ''judicial'' after he entered
upon the defense of the President. I may be
pardoned in saying that I lay nothing to his
charge in tliis. He bore himself bravely and
well in the presence of this tribunal. He dis­
charged his duty and his whole duty to his client.
If he has even changed his mind he had a right
to change it in the interests of his client; but
I have a right to have him bear witness in the
interests of the people and in support of the
Constitution of my couatry. I therefore read
further from him:

"Be•ides nll tho powers of the Presi<lcnt are exec­
utive merely. Ho cannot make a law. He cannot

Digitized by

Goog Ie

19
repeal one. He can only execute the laws. He can

Senators, on this question of the magnitude

neither make nor suspend nor alter them. He can

and character of these offenses charged against
the President I shall be permitted, inasmuch
as the counsel from New York thought it im

not even make an article of war.”

That is good law. It was not good law in
the midst of the rebellion, but it is good law,
nevertheless, under the Constitution, in the

light of the interpretation given to it by that
great man, Mr. John Quincy Adams, whom I
before cited.

When the limitations of the Con

stitution are operative, when the whole land is

covered with the serene light of peace, when
every human being, citizen and stranger, within
your gates is under the shelter of the limitations
of the Constitution, it is the very law and noth
ing but the law.

Now, Senators, that this alleged judicial
executive power of the President to suspend
at his discretion all the laws upon your statute
book and to dispense with their execution is

portant to refer to it, to ask your attention to
what was ruled and settled, and I think well
settled, on the trial of Judge Peck. The coun
sel took occasion to quote, as you may remem

ber, a certain statement from the record of
that trial, but took special pains to avoid any
statement of what was actually settled by it.
I choose to have the whole of the authority.

If the gentleman insists upon the law in this
case, I insist upon all the forms and upon all
its provisions. In the trial of Peck, from which
I read on page 427, Mr. Buchanan, chairman
of the Managers on the part of the House of
Representatives, made the statement that—
“An impeachable violation of law may consist in

the defense and the whole defense of this Pres

the abuse as well as in the usurpation of authority.”

ident seems to me clear—clear as that light of
heaven in which we live, and so clear, what
ever may be the decision of this tribunal, that

Subject, if you please, to the limitations of
your own law that the abuse and the usurpa
tion, as is clearly the fact here in the capital,

it will be apparent to the judgment of the
American people. It cannot be otherwise. It

are indictable. I venture to say, Senators, if
you look carefully through that record you
will find none of the learned gentlemen who

is written in his answer.

It is written in the

arguments of his counsel printed and laid upon

appeared in behalf of Judge Peck questioning

your tables. No mortal man can evade it.

for a moment the correctness of the proposi
tion. The learned and accomplished and la
mented ex-Attorney General of the United
States, Mr. Wirt, who appeared on that trial,

It

is all there is of it; and to establish this asser
tion that it is all there is of it. I ask Senators
to consider what article the President has
denied? Not one. I ask the Senate to con

admitted it.

There seemed to have been no

sider what offense charged against him in the

question in the Senate upon the subject against

articles of the House of Representatives he has
not openly by his answer confessed or is not

it. I think Mr. Buchanan was most happy in
his statement of the law in declaring that it
may consist in an abuse of power and may

clearly established by the proof? Not one.
Who can doubt that while the Senate was in

session the President, in direct violation of
the express requirement of the law, which, in
the language of his honor, the Chief Justice, in
the Mississippi case, left no discretion in him,
enjoined a special duty on him, did purposely,
deliberately, violate the law and defy its au
thority, in that he issued an order for the re

moval of the Secretary for the Department of
War and issued a letter of authority for the

appointment of a successor, the Senate being
in session and not consulted in the premises?
The order and the letter of authority are writ

ten witnesses of the guilt of the accused. They
are confessions of record.

There is no escape

from them.
If this order is a clear violation of the tenure
-

consist in a usurpation of authority. For the
purposes of this case I, think it capable of
the clearest demonstration that this is the

rule which ought to govern its decision, inas
much as all the offenses charged, when com
mitted within the District, as already shown,
are indictable.

It is conceded that there is a partial excep
tion to this rule, and that exception furnishes
all the law which has appeared in this case,
so far as I have been able to discover, in the
defense of the Executive. It is an exception,
however, made exclusively in the interests of

judicial officers. The rule is well stated in
5 Johnson, 291, by Chancellor Kent, in the case
of Yates vs. Lansing. I read from that au
thority:

of-office act, if the letter of authority is also a
clear violation of the tenure-of-office act, the
President is manifestly guilty, in manner and
form, as he stands charged in the first, the sec
ond, the third, the eighth, and the eleventh

“Judicial exercise of power is imposed upon the
courts, and they must decide and act according to
their judgment, and therefore the law will protect
them.”

articles of impeachment; and no man can gain
say it except a man who accepts as law the as
sumption of his answer that it is his executive
prerogative judicially to interpret the Consti.

civil suit or indictment for any act done or omitted
to be done by him sitting as judge has a deep root

tution for himself; to set aside, to violate, and

He adds:
“The doctrine which holds a judge exempt from a

in the common law. It is to be found in the earliest
º records, and it has been steadily maintained
y an undisturbed current of decisions in the English
courts amid every change of policy and through every
revolution of their Government.”

to defy the law when it vests no discretion in
him whatever, and challenge the people to
bring him to trial and judgment.

A judge manifestly, upon this authority, act
ing within his general authority, cannot be held
*

20
to answer for an error of judgment. He would
only be impeachable, however erroneous his

judgment might be, for an abuse, for a usurp
ation of authority great in itself, and it must

be specially averred, and must be proved as
averred. No such rule ever was held to apply,
since the courts first sat at Westminster, to an
executive officer. It is an exception running
through all the law in favor of judicial officers.
A mere executive officer clothed with no judi
cial authority would be guilty of usurpation
without the averment of corruption. I beg to
say that it has never been averred, or held
necessary if averred, in any authoritative case
against any executive officer whatever. An
error of judgment would not excuse him. I
refer to the general rule of law on this subject

as stated by Sedgwick in his work on statutory
and constitutional law, in which he says:

it is within the compass of the mind of any
Senator within the hearing of my voice to say
it should not be so. Chancellor Kent says
upon that subject, page 529:
“The distinction between statutory offenses which
are ma'a prohibito only. or mala in se, is now ex
ploded. and a breach of the statute law in either case
is equally unlawful and equally a breach of duty.”

The Senate will remember the very curious
and ingenious use that the gentleman attempted
to make of this statement of his, and that was
that it cannot be possible that you are to hold
these acts of the President criminal by force
of the act of 1801 which, by relation simply,
makes common-law offenses indictable crimes

within the District of Columbia; that was
not the only use, but that was a part of it
and he went on to say to the Senate further
that he could not see the force of the remark

“Good faith is no excuse for the violation of stat

made by my colleague, [Mr. BouTWELL, J that

utes. Ignorance of the law cannot be set up in de

the President of the United States in this letter

fense, and this rule holds good in civil as well as in

of authority by the appointment ad interim of
Lorenzo Thomas in the presence of the Sen
ate, during its session, without its advice and
consent, twelve days after the expiration of
the six months limited by the provisions of the
act of 1795, could be held a criminal act. The

criminal cases.”—1 Sedgwick, 100.

Mr. CONNESS. Mr. President, I should
like to ask the Manager whether he feels able

to go on further to-day or not? I make the
suggestion to him.
Mr. Manager BINGHAM.

pleasure of the Senate.

I am at the

defense of the President in some sort rested .

I will be able to pro

on the provisions of that law wilich authorized

ceed, if it be the pleasure of the Senate, for

him to supply a vacancy in the several Depart

half an hour or so more with this argument;
but I abide the pleasure of the Senate, and
will defer to whatever may be their wishes

ments for a period not exceeding six months.

about it.
Several SENATORs.

Go on!

Go on 1

Mr. Manager BINGHAM. Senators, at this
of the argument the gentleman from

ew York, speaking for the President, know
ing that the rule as I have read it from Sedg
wick is the rule of universal application to
executive officers and to all officers save ju
dicial officers, that ignorance of the law can
never be interposed as an excuse either in

Well, I will try to explain it here if I may be
pardoned in case I should happen to refer to
it again in the progress of my argument.
It is explained by this simple word, that the
act of 1795, under which he attempts in his
distress to shelter himself, says that no one
vacancy shall be so supplied for a longer period
than six months; he did supply it, according

to the very words of his answer, for he tells you
he made a vacancy indefinitely when he sus

violation of the law, entered upon a wonder

pended Edwin M. Stanton, Secretary of War;
he says in his answer it was an indefinite sus.
pension, not simply for six months, but dur.
ing the time he might occupy the executive

ful adventure when he undertook to tell the

power in this country.

Senate of the United States—I really thought

pended him, he says, under the Constitution and

it was a slip of the tongue, for I have great

laws; and he tells you further, in the same an

civil or criminal proceedings for the deliberate

He indefinitely sus

respect for his learning, and I could not but swer, that under the act of 1795 he supplied the
think he knew better—but he intimated that

this rule, which holds the violator of law an
swerable and necessarily implies the guilty

urpose and the guilty intent from the fact of
its violation, was a rule that was restricted to

offenses mala in se.

The gentleman ought to

have known when he made that utterance that

the highest writer upon the law in America,
and second to no writer upon the law who

writes in the English language in any country,

vacancy. That act told him he should not sup:
ply it for a longer period than six months, unless
it results that at the end of every six months
he may supply it again and the statute thereby
be repealed, supply it to the end of the time
allotted him under the Constitution to execute
the office of President of the United States. I

would like some Senator, in your deliberations,
to make answer to that suggestion and see how
it can be got rid of. Ile makes a vacancy

has truly recorded in his great commentaries
upon the laws that the distinction between

indefinitely; he appoints General Grant Secre

mala prohibita and mala in se is long ago ex
ploded, and the same rule applies to the one

months, and twelve days after the expiration

as to the other.

I refer to 1 Kent's Comment

aries, page 529, and really I cannot see why
its...ould not be so. I doubt very much whether
º

tary of War ad interim; at the end of six
of six months, in utter defiance of the law of
1795, he makes another appointment; and at
the end of that six months and twelve days
aſter, if you please, in further defiance of it,

21
he makes another, and so on until the end of

the time during which he may exercise the office
of President, while the law itself expressly de
clares that no vacancy shall be so supplied for
a longer period than six months. I think the

gentleman from New York could have seen it

ruled that you cannot try them by impeach
ment, and of course when a majority vote that
way in each House you can hardly expect to
expel them. Their only responsibility is to

the people, and the people alone have the right

that he shall not be Commander-in-Chief of

to challenge them. That is precisely what the
people have written in the Constitution, and
every man in this country so understands it.
Senators. I may make another remark which
shows here the utter fallacy of any such posi
tion as that interposed by the counsel, and
that is, that the Congress which would be so
lost to ail sense of justice and duty as to take
away the pardoning power from the Executive
in any case whatever have it in their power to
take away any appeal to the courts of justice

the Army, a law declaring that he shall not

in the United States upon that question, so that

exercise the pardoning power in any case what

there would be an end to it, and there wou d
be no remedy but with the people, unless, in
deed, the President is to take up arms to set
aside the laws of the Congress of the United
States. The Constitution of your country is

but for the interest he felt in the fate of his

client. That is my impression, and everybody
else can see it in this country.
But it has been further said, by way of illus
tration and answer to all this, said by the coun

sel for the President, “Suppose the Congress
of the United States should enact a law in clear

violation of the express power conferred upon

the President, as, for example, a law declarin

ever, is not the President to intervene and pro
tect the Constitution ?” I answer, no; not by
repealing the laws. The President is not to
intervene and protect the Constitution against

the laws. ... The people of the United States are
the guardians of their own honor, the pro
tectors of their own Constitution, and if there

be anything in that Constitution more clearly
written and defined and

established than

another, it is the express and clear provision
that the legislative department of this Govern
ment is responsible to no power on earth for
the exercise of their legislative authority and

no such weak or wicked invention.

Having disposed of this proposition, Sen
ators, the next inquiry to be considered before
the Senate, and to which I will direct their
attention, is, has the President power under
the Constitution to remove the heads of De

partments and fill vacancies so created during
the session of the Senate of the United States

the discharge of their duties during the sessions
of the Congress save to the people that ap

without its consent, without and against the
express authority of law 2 If he has not this
|. he is confessedly guilty as charged. If

pointed them.

he has, of course he ought to go acquitted as
charged in the first, second, and third articles.

It is a new doctrine altogether

that the Constitution is exclusively in the keep
ing of the President. When that day comes,

Mr. CONNESS. I move that the Senate,
sitting as a court, adjourn until to-morrow.

Senators, that the Constitution of your coun
try, so essential to your national existence and
so essential to the peace, the happiness, and

glad, indeed, for that courtesy.

the prosperity of the people, rests exclusively
upon the fidelity and patriotism and integrity

The motion was agreed to; and the Sen
ate, sitting for the trial of the impeachment,

of Andrew Johnson, may God save the Con

adjourned.

stitution and save the republic from its de
fender l No, sirs; there is no such power

Mr. Manager BINGHAM.

I shall be very

vested in the President of the United States.

TUESDAY, May 5, 1868.

It
is only coming back to the old proposi
tion.

The Chief Justice of the United States took
the chair.

Why, say the gentlemen, surely it would be
unconstitutional for Congress so to legislate.

Agreed, agreed; I admit that it would be not
only unconstitutional, but it would be criminal.

But the question is, before what tribunal is the
Congress to answer? Only before the tribunal
of the people. Admit that they did it cor
ruptly, admit that they did it upon bribe; and
yet every man at all conversant with the Con
stitution of the country knows well that it is

The usual proclamation having been made
by the Sergeant-at-Arms,
The Managers of the impeachment on the
part of the House of IRepresentatives and
Messrs. Evarts, Groesbeck, and Nelson, of

counsel for the respondent, appeared and took
the seats assigned to them respectively.
The members of the House of Representa
tives, as in Committee of the Whole, preceded
by Mr. E. B. WASHBURNE, chairman of that

written in that instrument that members of

committee, and accompanied by the Speaker

Congress shall not be held to answer in any
other place or before any body whatever for

and Clerk, appeared and were conducted to
the seats provided for them.

their official conduct in Congress assembled

The Journal of yesterday's proceedings of
the Senate, sitting for the trial of the impeach

save to their respective Houses. That is the
end of it. They answer to the people, and the
people alone can apply the remedy, and of
course ought to apply it. You cannot make

HAM will proceed with the argument in behalf

them answer in the courts.

of the House of Representatives.

You have had it

ment, was read.

The CHIEF JUSTICE. Mr. Manager BING

22
Mr. Manager BINGHAM. Mr. President and
Senators, I would do injustice, Senators, to
myself; I would do injustice to the people
whom I represent at this bar, if I were not to
acknowledge, as I do now, my indebtedness to
honorable Senators for the attention which they
gave me yesterday while I attempted to demon
strate to the Senate in behalf of the people
of the United States, that no man in office or
out of office is above the Constitution or above

the laws; that all are bound to obey the laws;
that the President of the United States, above
all other officials in this country, is bound to
take care that the laws be faithfully executed;
and especially that the suspending power and
the dispensing power asserted by the President
endangers the existence of the Constitution,

is a violation of the rights of the people, and
cannot for a moment be tolerated.

When I had the honor to close my remarks
yesterday, I stated to the Senate that their in

quiry would be directed first to the question
whether the President has the power under the
Constitution to remove the heads of Depart
ments and fill vacancies so created by himself
during the session of the Senate in the ab
sence of an express authority of law author.

rule, a rule not to be challenged here or else.
where among intelligent men, that every per
son, whether in office or out of office, who
commits an unlawful act made criminal by the
very terms of the statute of the country within
which he lives and to the jurisdiction of which
he is subject intends all that is involved in the
doing of the act, and the intent laid, therefore,

is established. No proof is required. Why?
To require it would simply defeat the ends of
justice.

-

Who is able to penetrate the human intel.
lect, to follow it to its secret and hidden re.
cesses in the brain or heart of man, and bear
witness of that which it meditates and which

it purposes? Men, intelligent men, and es:
pecially the ministers of justice, judge of men's
purposes by their acts, and necessarily hold
that they intend exactly that which they do;
and it is for them, not for their accusers, to
show that they did it by misadventure, to show

that they did it under a temporary delirium of
the intellect by which in the providence of God
they were for the time being deprived of the

to the conclusion that it is no crime in the

power of knowing their duty and of doing their
duty under the law.
Senators, upon a memorable occasion not
unlike this which to-day attracts the attention
of the Senate, and attracts the attention of the
people of the United States, and attracts the
attention of the civilized world, the same ques
tion was raised before the tribunal of the peo:

President of the United States deliberately

ple whether intent was to be established, and

and purposely and defiantly to violate the ex

one of those men on that occasion, when Earl
Strafford knelt before the assembled majesty

izing him so to do.

If the President has not

this power, he is confessedly guilty, as charged
in the first, second, third, eighth, and eleventh
articles; unless, indeed, the Senate is to come

press letter of the Constitution of the United
States and the express prohibition of the stat
utes of the Congress. I have said that the act

was criminal if it was done deliberately and
purposely. What answer has been made to
this, Senators? That the allegation is found
in these articles of the criminal intent, and
learned counsel have stood here before the Sen

of England, arose in his place and answered
that question in words so clear and strong that
they ought to satisfy the judgment and satisſ |
the conscience of every Senator. I read the
words of Pym on the trial of Strafford, as tº
the intent:

“Another excuse is this, that whatsoever, he hath.

ate arguing from hour to hour and from day to
day to show that a criminal intent is to be

spoken was out of good intention.

proved.

Matters hurtful and dangerous may be accompaniel
with such circumstances as may make them appect
useful and convenient; and, in all such cases, good
intention will justify evil counsel; but where the
matters ſº are evil in, their own natur,

I deny it.

I deny that there is any

authority which justifies any such statement.
The law declares, and has declared for cen:
turies, that any act done deliberately in viola

tion of the law; that is to say, any unlawful
act done by any person of sound mind and
understanding, and responsible for his acts,
necessarily implies that the party doing it in
tended the necessary consequences of his own
act.

I make no apology, Senators, for the

Sometimes, my

lords, good and evil, truth and falsehood lie so neur
together that they are hardly to be distinguished,

such as the matters are where with the Earl of Straſ.

ford is charged—as to break a public faith, and ſo

subvert, laws and government—they can never hº
justified by any intentions, how good soever they tº
pretended.”

-

Is there no endeavor here “to break public
faith?’”

Is there no endeavor here “to sub

insertion of the word “intent” in the articles.

vert laws and Government?” I leave Senators

I do not treat it as surplusage. It was not
needful; but I make no apology for it. . It is
found in every indictment; and who ever heard

to answer that question upon their own colº
science and upon their oaths.

more strictness than they can be expected to

On this subject of intent I might illustra”
the utter futility of the position assumed herº
by the learned counsel, by a reference to.”

of a court where the rules are applied with
be applied by the Senate of the United States,

memorable instance in history when certa'ſ

demanding of the prosecutor, in any instance

fanatics, under the reign of Frederick II, tº

whatever, that he should offer testimony of the

little children to death with the intent of sell. *

criminal intent specially averred in the indict

ing them to heaven, because the Master lull

ment, when he had proved that the act was

written, “Of such is the Kingdom.” It dº
not appear that this good intent of slaying tº

done and the act done was unlawful?

It is a

23
innocents, with their sunny faces and sunny
hearts, that they might send them at once to
heaven, was of any avail in the courts of justice.
I read also of a Swedish minister who found

to notice it hereafter more specifically and
especially, I ask you to pardon me for refer
ring to it here at this time, it cannot have
escaped your notice that the learned and astute

within the kingdom certain subjects who were
the beneficiaries of a charity, upon whose

counsel for the President took care all the

heads Time, with its frosty fingers, had scat

tered the snows of five and seventy winters,
whom he put brutally and cruelly to death,
with the good intent of thereby increasing the

trust in the interest of the living who had a
longer measure of days before them.

I never

. Senators,

that any such plea as that
availed in the courts of justice against the
charge of murder with malice aforethought.
I dismiss this subject. It is a puerile con

while from the beginning to the end of this
controversy not to connect the two powers of
removal and appointment during the session
of the Senate in their presence and without
their consent together.
Every line and word of the voluminous argu
ments uttered by the very learned and ingen
ious counsel of the President bears witness to

leagues, [Mr. WILLIAMS, ) and it is not unfit

the truth of that which I now assert. Why was
this? Simply, Senators, as I shall presently
show you, that the appointing power is by the
express terms of the Constitution, during the
session of the Senate, put beyond the power of
the President, save and except where it is ex
pressly authorized by law. I thank the gentle
men for making this concession, for it is a con
fession of guilt on the part of their client.
When no answer could be made they acted

that I should notice it in passing, that doubt.

upon the ancient, time-honored, and accepted

less Booth, on the 14th day of April, 1865,
when he sent the pure spirit of your martyred
President back to the God who gave it, thought,
declared, if you please—“declared” is the

maxim that silence is gold, and so upon that
point they were silent one and all without ex
ception. There was an appointment made here
in direct violation of express law; in direct
violation of the express letter of the Constitu
tion; in direct violation of every interpretation
that has ever been put upon it by any com-.

ceit, unfit to be uttered in the hearing of Sen
'ators, and condemned by every letter and line

and word of the common law, “the growth of
centuries and the gathered wisdom of a thou
sand years.”
It is suggested by one of my honorable col

proper word—declared that he did that act in

the service of his country, in the service of
liberty, in the service of law, in the service of

the rights of a common humanity.

If the

manding intellect in this country, and the gen

avenging hand of justice had not cut him off

tlemen knew it.

upon the spot where he stood, instantly, as
though overtaken by the direct judgment of
offended Heaven, I suppose we should have
had this sort of argument interposed in his
behalf that his intentions were good, and there

It is in vain, Senators, that they undertake
to meet that point in this case by any reference
to the speech of my learned and accomplished
friend who represents the State of Ohio upon

fore the violated law itself ought to justify his

a word escaped his lips in the speech which
they have quoted here touching this power of
appointment during the session of the Senate
and in direct violation of the express letter of
the tenure-of-office act, nor did any such word
escape from the lips of any Senator. I am not
surprised; it does credit to the intellectual
ability of the learned gentlemen who appear for
the President that they kept that question out
of sight in their elaborate and exhaustive argu
ments. I read for the Senators the provision

act and allow him to go acquit, not a condemned
criminal, but a crowned and honored man.

I really feel, Senators, that I ought to ask
your pardon for having dwelt upon this prop
ºsition; but you know with what pertinacity it

has been pressed upon the consideration of
Senators, and, with all respect to the learned
and accomplished gentlemen who made it, I

deem it due to myself to say here that I think

º: unworthy of them and unworthy of the

the floor of the Senate, [Mr. SHERMAN.] Not

place.

of the Constitution upon this subject which I

I return, Senators, to my proposition: has
the President the power under the Constitu.

read yesterday:
“The President”

+

+

“shall nom

on and the laws during the session of the

inate, and by and with the advice and consent of

Senate to create vacancies in the heads of

the Senate shall appoint, embassadors, other public
ministers and consuls, judges of the Supreme Court,

Departments under your Constitution, and fill
them without the authority of express law and
Without the advice or consent of the Senate?

The has not, he has violated the Constitution,

and all other officers of the United States whose ap

pointments are not herein, otherwise provided ior,
and which shall be established by law, but the Con
gress may by law vest the appointment of such infe

rior officers as they think proper in the President

alone, in the courts of law, or in the heads of Depart
*d he has violated, as I shall show hereafter, ments.”
the express law of the land, and is therefore
Can any one doubt that this provision clearly
ºminal—criminal in his conduct and in his
"tention, before the tribunal where he stands restricts the power of the President over the
appointment of heads of Departments in this,
*.signed by order of the people.

First, then, is the Constitution violated by

that it expressly requires that all appointments

is act of removal and appointment? And not otherwise provided for in this Constitution,
ºre, Senators, although I may have occasion

enumerating embassadors and others, shall be

24
by and with the advice and consent of the Sen
ate? It is useless to waste words upon the
proposition. It is plain and clear. It must
be so unless the appointments of the heads of
Departments, in the words of the Constitution,
are otherwise provided for ; and I respectfully
ask Senators wherein are they otherwise pro
vided for in the Constitution ?

The heads of

In the answer, on pages 25 and 26 of the record,
this will be found recorded in it:
“And this respondent, further answering, says
that it is provided in and by the secoud section o
an act to regulate the tenure of certain civil offices,

that the President may suspend an officer from the
performance of the duties of the office held by him,
for certain causes therein designated, until the next
meeting of the Senate, and until the case shall be
acted on by the Senate; that this respondent, as

1)epartments are named by that title, and by

President of the United States, was advised, and he

the very terms of the Constitution it is pro
vided that the Congress may by law vest in
the heads of Departments the power to appoint
without the consent of the President, without

verily believed and still believes, that the executive

power of removal from office confided to him by the
Constitution, as a foresaid, includes the power of sus
pension from otice at the pleasure of the President,
and this respondent, by the order aforesaid, did sus

the said Stanton from office, not until the next
the consent of anybody but the authority of a. pend
meeting of the Senate, or until the Senate should
law of Congress, all inferior officers. Is any have acted upon the case, but by force of the power
authority vested in him by the Constitution and
man, in the light of this provision, to stand and
laws of the United States, indefinitely and at the pleas
before the Senate and argue that heads of De
partments are inferior officers? If then, their
appointment is not otherwise provided for in
the Constitution, which I take for granted, I
ask the Senate whether their appointment is
otherwise provided for by law, whether it was
ever otherwise provided for by law Ż
I am not unmindful of the fact, in passing,
that some of the learned counsel for the Pres

ident said “here was no appointment; this
was only an authority to fill a vacancy.” The
counsel are not strong enough for their client.
They cannot get rid of his answer. He de
clares that he did make an appointment in
definitely, made a removal and filled it, and

ure of the President.”

That is his answer.

Under the Constitution

he claims this power. On that subject, Sena
tors, I beg leave to say, in addition to what I
have already uttered, that it was perfectly well
understood when the Constitution was on trial

for its deliverance before the American people
that no such power as this was lodged in the
President of the United States; on the con
trary, that for every abuse of power, for every

usurpation of authority, for every violation of
the Constitution and the laws, he was liable

at all times to that unrestricted power of the

pointment ad interim'' more than once unwit
tingly escaped the lips of the counsel. But I

people to impeach him through its Represent.
atives and to try him before its Senate without
let or hinderance from any tribunal in the land.
I refer upon this point to the clear utterance
of Hamilton as recorded in the seventy sev.

do not propose to rest this case upon any quib

enth number of the Federalist :

bles, upon any technicalities, upon any contro
versy about words. I rest it upon the broad
spirit of the Constitution, and stand here this
day to deny that there ever was an hour since

in the business of appointments, that it would cºn

followed it with another. The words “ap

the Constitution went into operation that the
President of the United States had authority
to authorize anybody, temporarily even, to

“It has been mentioned as one of the advantages
to be expected from the coöperation of the Senate,

tribute to the stability of the Administration: The
consent of that body would be necessary to ſisplace as
well as to appoint. A change of the Chief Magistrate,
therefore, would not occasion so violent or so gen

eral, a revolution in the officers of the Government as
might be expected if he were the sole disposer of

exercise the functions of a head of a Depart
ment of this Government save by the authority
of express law. It is surely a self-evident prop

offices.

osition that must be understood by Senators

apprehension that a discountenance of the Senate
might frustrate the attempt, and bring some degree
of discredit upon himself. Those who can best esti

that the power which created the law may re
peal it.
I make this remark here and now because

the President's defense, as stated in his answer

more clearly and distinctly than in any of the
arguments of the learned counsel, is that he

Where a man in any station had given satis

factory evidence of his fitness for it, a new President
would be restrained from attempting a change in

favor of a person more agreeable to him, by the

mate the value of a steady administration will be
most disposed to prize a provision which connects the

official existence of public men with the approba:
tion or disapprobation of that body, which, from the
greater permanency of its own composition, will in
all probability be less subject to inconstancy than

asserts and exercises this power by virtue of

any other member of the Government.
“To this union of the Senate with the President, in

the implied, unwritten executive prerogative

the article of appointments, it has in some cases been

judicially to interpret the Constitution for him
self and judicially to determine the validity of
all the laws of the land for himself, and there

objected that it would serve to give the President an
undue influence over the Senate; and in others that

fore to appoint just such ministers as he pleases,
at such times as he pleases, and for such periods
as he pleases, in defiance alike of the Constitu

tion and of the laws. The language is that the
removal was indefinite. The language of his
answer is that he indefinitely vacated the office,
and filled it, of course, indefinitely, and that is
his defense. There is no getting away from it.

-

-

it would have an opposite tendency; a strong proof
that neither suggestion is true.

-

“To state the first, in its proper form, is to refute
it.

It amounts to this: the President would have an

improper influence over the Senate, because, the
Senate would have the power of restraining him.
This is an absurdity in terms.”
-

And I agree with Hamilton that it is an
absurdity in terms after what has been written
in the Constitution of your country, for any

man, whatever may be his attainments, and

25
whatever may be his pretensions, to say that

and see whether the gentlemen are justified

the President has the power, in the language
of his answer, of indefinitely vacating all the

in attempting to inſer either from the legisla
tion of 1789 or from the legislation of 1795 or
from any other legislation which at any time
existed on the statute-books of this country,
this executive prerogative, in direct violation
of the express letter of the Constitution, to va

executive offices of this country, and indefi
nitely, therefore, filling them without the advice
and consent of the Senate in the absence of an

express law authorizing him so to do. . And
here I leave that point for the consideration of
the Senate and for the consideration of that

cate all the executive offices of this Govern

great people whom the Senate represent upon

ment at his pleasure, and fill them during the
session of the Senate, and thereby control the

this trial.

patronage of the Government, amounting to

I ask, also, the judgment of the Senate upon
the weighty words of Webster, whom the gen

millions upon millions, at his pleasure, and
put it into the hands of irresponsible agents to

tleman [Mr. Evarts] concedes is entitled to

become only the supple tools of his mad ambi

some consideration in this body, who illus

tion.

trated for long years American institutions by
his wisdom, his genius, and his learning; a

Of this act of 1789 Mr. Webster well said—

man who, when living, stood alone among liv

and I am not here even to dispute the propo
sition; indeed, I would hesitate long before I

ing men by reason of his intellectual stature;

ventured to dispute any proposition which he

a man who, when dead, sleeps alone in his
tomb by the sounding sea, meet emblem of

the Constitution—that he did not condemn the

the majesty and sweep of his matchless intel
iect.

I ask, Senators, attention to the words

of Mr. Webster on this appointing power con
ferred upon the President under the Constitu
tion, subject to these limitations, by and with
the advice and consent of the Senate:
“The appointing power is vested in the President
and Senate; this is the general rule of the Constitu

tion. The removing power is part of the appointing
power; it cannot be separated from the rest but by
supposing that an exception was intended; but all
exceptions to general rules are to be taken strictly,

even when expressed ; and, for a much stronger

accepted for the time being as, possible under
legislation of 1789 as being unconstitutional,
but he did condemn it as being highly impol
itic, and which had subjected the people of
this country to great abuses.
He did say,
however—and to these words I ask, also, the
attention of the Senate—of the legislation of
1789, “that it did separate the power of re

moval from the power of appointment.”

It

did separate it, subject to its own limitations.
It did separate it, and confer it, too, by au
thority of that act and by no other authority.

It is for this purpose, and for this purpose

reason, they are not to be implied, when not ex
pressed, unless inevitable necessity of construction
requires it.”—4 Webster's Works, p. 194.

alone, that I cited Mr. Webster in this part of
the argument. “It was a grant of power to

What answer, I pray you, Senators, has been

the President,” conferred upon him by the

given, what answer can be given to these in
terpretations of your Constitution by Hamilton
and Webster? None, except to refer to the
acts of 1789 and 1795, and the opinions ex

Congress to remove executive officers. I ad
mit, Senators, that during the recess of the
Senate such a statute ought to be always upon
your statute-book so long as you have a Presi

N.

in the debates of the First Congress.

dent who can be trusted.

A man who is be

either those acts nor the debates justify the
conclusion that the President during the session

traying his trusts ought to be suspended from
his office, which is a temporary removal, for

of the Senate may vacate and fill the Executive
Departments of this Governmentathis pleasure,

reasons appearing to the President which jus

and without the advice and consent of the Sen

ale, in the absence of any express authority of
law and in direct violation of the prohibitions
of the law.

The acts themselves will bear no

such interpretation. I dismiss, with a single
word, all reference to the debate on the occasion,
for the Senate are not unadvised that there

were differences of opinion expressed in that
debate, nor is the Senate unadvised that it has
already been ruled from the Supreme Bench of

tify it; and that is precisely your law to-day.
It is within the power of the Congress un

doubtedly to confer it upon the President.
That is your law to-day.
What one of the counsel now, I ask the Sen
ate to consider, ventured to say here—if it was
uttered it certainly escaped my observation—
that the President of the United States at any
time had power during the session of the Sen.
ate to vacate the offices of the heads of the

Departments in this country even under the

the United States that the opinions expressed acts of 1789 and fill them indefinitely at his
y Representatives or Senators in Congress
pleasure ? What practice in the Government
Pending the discussion of any bill are not to be
received as any authoritative construction or

was cited here to support any such pretension
of power in the Executive 2 None whatever.

literpretation whatever to be given to the act.

To be sure, reference was made to the case

! would be a sad day for the American people of Pickering ; but the gentlemen ought to re
ºf the time should ever come when the utter

member that when reference was made to it,

*lices of excited debate are to be received ever

so far as the removal was concerned, it was

"terward as the true construction and inter expressly authorized by the act of 1789; I
... Prelution of law. Senators, look to the acts,

care not how informally ; the words are in that

26
act “unless removed by the President;” it is
a grant of power, and Webster so interprets
it on page 194 of the fourth volume of his

works as an act of Congress which separated
the power of removal from the power of ap
pointment. His construction was right. Upon
that construction I stand in this argument.
But it does not follow by any manner of means
because this power was exercised by the elder

Adams that he thereby furnished a precedent
in justification of the violation of another and
a different statute, which by every intendment

repealed the act of 1789 and stripped the
President of any colorable excuse for asserting
any such authority.
That is my first answer to this point made by
the counsel, and I make a still further answer
to it; and that is this, that the elder Adams
himself, as his letter to his Secretary of State
clearly discloses, did not consider that it was
proper even under the law of 1789 for him to
make that removal during the session of the

Senate, and therefore these significant words
are incorporated in his letter of request to Sec
retary Pickering that he should resign before
the session of the Senate, the resignation, of
course, to take effect at a future day, so that

upon the incoming of the Senate he might name
a successor, showing exactly how he understood
the obligations of the Constitution.
Although the record, so far as I have been
able to trace it, is somewhat imperfect, I think
it but justice to the memory ofthat distinguished

the executive offices and fill them at his pleas
ure, and dispels the mists with which counsel
have attempted to envelop it, and that is the
provision that the President shall have power

to fill up all vacancies which may happen dur
ing the recess of the Senate and to issue com
missions to his appointees to fill such vacancies,
which commissions shall expire at the end of
the next session of the Senate.

I ask Senators

what possible sense is there in this express
provision of the Constitution that the Presi

dent shall have power to fill up all vacancies
which may happen during the recess of the
Senate, his commissions to expire at the end of
their next session, if after all, as is claimed in
his answer and is asserted by his unlawful acts
under the laws of the United States, he is
invested by the Constitution with the power to
make vacancies at his pleasure even during the
session of the Senate? I ask Senators, fur
ther, to answer what sense is there in the pro
vision that the commission which he may issue
to fill a vacancy happening during the recess
of the Senate shall expire at the end of their
next session, if after all, notwithstanding this
limitation of the Constitution, the President
may, during the session, create vacancies and
fill them, in the words of his answer, indef

initely? If he has any such power as that, I
may be allowed to say here, in the words of
John Marshall, your Constitution at last is but

a splendid bauble; it is not worth the paper
upon which it is written.

It is a matter of

atriot to declare that the whole transaction

mathematical demonstration upon the text of

justifies me in saying here, as my belief, in the
presence of the Senate, that he did not issue
the order for the removal of Pickering after

this instrument, by necessary implication, that

the Senate had commenced its session.

It is

the President's power to fill vacancies is lim
ited to vacancies that arise during the recess
of the Senate, save where it is otherwise pro

true that he issued it on the same day, but he

vided for by express provision of law.

did not issue it after the Senate had commenced

That is my answer to all that has been said
here by the gentlemen upon this subject. They
have brought a long list of appointments and
a long list of removals from the foundation of
the Government to this hour, which is answered
by a single word, that there was existing law
authorizing it all, and that law no longer ex

its session; he issued it before ; and upon the
assembling of the Senate and the opening of
the Senate on the same day, showing his respect
for the Constitution and the laws and the obli

gation of his oath, he sent to that Senate the

name of the successor of Pickering, John
Marshall, and on the next day, Tuesday, John
Marshall, as Secretary of State, was confirmed
to succeed Timothy Pickering, removed by and
with the advice and consent of the Senate. Nor

ists.

Not a line or word or tittle of it exists

since the 2d day of March, 1867; assuming in
what I say now, of course, that the tenure-of
office act is constitutional and valid, I refer to

does it appear that John Marshall exercised
the functions of his office, or attempted to ex

those statutes; I shall not exhaust my strength

ercise the functions of office, until the Senate

read them here and now, but I shall refer to
them in the report of my argument. Those

had passed upon the question of his appoint
ment, and therefore necessarily passed upon
the question of the removal of Pickering. All

or the patience of the Senate by stopping to
statutes are as follows:
“Act to provide for government of territory north
-

these facts arise in this case in the removal of

west of river Ohio. Approved August 7, 1789.

Pickering to disprove everything that has been

“Be it enacted, &c., That in all cases in which by
the said ordinance (for government of territory

said here by way of apology or justification or

northwest of river Ohio) any information is to be

even of excuse of the action of the President

given or communication made by the Governor of
the said Territory to the United States in Congress

of the United States in violating the Constitu
tion and the existing laws of the country.

But the other provision of the Constitution,

assembled, or to any of their officers, it shall be the
duty of the said Governor to give such information
and to make such communication to the President
of the United States: and the President shall nom

Senators, which I recited yesterday in your
hearing, pours a flood of light upon this ques

inate, and by and with the advice and consent of the

tion as to the power of the President to vacate

ordinance, were to have been appointed by the Uni

-

z-

-

Senate shall appoint, all officers who, by the said

|

27
ted States in Congress assembled, and all officers so

cies arising during the recess shall expire with

appointed shall be commissioned by him; and in all

the next session of the Senate, he may never
theless create the vacancies during the session
and fill them without your advice and consent,
I reassert my proposition that such commission

cases where the United States in Congress assem

bled might by the said ordinance revoke any com
mission or remove from any office, the President is

hereby declared to have the same powers of revoca
tion and removal.”—1 Statutes, p. 50, sec. 1.

cannot expire, if his assertion be true, without

“Act to amend the act entitled “An act making

the consent of the Executive; and if that prop
osition can be answered by any man, I desire it
to be answered now. I want to know by what

alterations in the Treasury and War Departments.’
Approved February 13, 1795.
“In case of vacancy in the office of Secretary of
State, Secretary of the Treasury, or of the Secretary
of the Department of War, or of any officer of either
of the said Departments whose appointment is not
in the head thereof, whereby they cannot perform

the duties of their said respective offices, it shall be
lawful for the President of the United States, in case
he shall think it necessary, to authorize any person
or persons, at his discretion, to perform the duties
of the said respective offices until a successor be ap
pointed or such vacancy be filled: Provided, That
no one vacancy shall be supplied in manner afore
said for a longer term than six months.”—l Statutes,
415; 1 Brightly's Digest, 225.

provision of the Constitution the commission
expires upon the claim of this answer; and if it
does not expire without the consent of the Ex
ecutive, I want to know what becomes of the

appointing power lodged jointly in the Senate
with the Executive for the protection of the

people's rights and the protection of the peo
ple's interests. It cannot be answered here or
anywhere by a retained advocate of the Presi
dent or by a volunteer advocate of the Presi
dent, in the Senate or out of the Senate.

“An act to limit the term of office of certain officers

therein named, and for other purposes. Approved
May 15, 1820.
“From and after the passage of this act, all dis
trict attorneys, collectors of the customs. naval offi
cers and surveyors of the customs, navy agents, re

ceivers of public moneys for lands, registers of the land
offices, paymasters in the Army, the apothecary gen
eral, the assistant apothecary general, and the com
missary goneral of purchases, to be appointed under
the laws of the United States, shall be appointed for

the term of four years, but shall be removable from
office at pleasure.”–3 Statutes, 582.
“An act to regulate

the diplomatic

and consular

systems of the United States. Approved August
Section one regulates the appointment and com
pensation of consuls.

“It belongs exclusively to the President, by and
with the advice and consent of the Senate, to appoint
consular officers at such places as he or they deem

to be meet. They are officers created by the Consti
tution and the laws of nations and by acts of Con

gress.”–11 Statutes, 52, section 3; 1 Brightly, 174, Note
a; (and see also the provision touching appoint
ments.)

I demand to know, again, whát provision of
the Constitution, under the claim set up in this

answer, terminates the commission.

I took

occasion to read from the answer that I might
not be misunderstood. He puts it directly

upon the Constitution. Nobody is to be held
responsible for it; and I am glad it is so, either
by intendment or otherwise—nobody is to be
held responsible for this assumption but this
guilty and accused President. It was an auda
city the like of which has no parallel in cen
turies for him to come before the custodians

of the people's power and thus defy even their
written Constitution, its plainest text, and its
plainest letter.
Senators, I have thought upon this subject
carefully, considerately, conscientiously. I
have endeavored to find anywhere within the
text of the Constitution any colorable excuse
for this claim of power asserted by the Presi
dent and dangerous to the liberties of the

If this provision of the Constitution, then,

people, and I can find, from beginning to end

means what it expressly declares, that the

of that great instrument, no letter or word

President's power of appointment in the ab

upon which even the astutest casuist could for

sence of express law is limited to such vacan a moment fasten, save the words that “the
cies as may happen during the recess of the executive power shall be vested in a Presi
Senate, it necessarily results that an appoint
ment made during the session of the Senate,
without the advice and consent of the Senate,

dent.”

That gives no colorable excuse for this as
sumption. What writer upon your Constitu

of the head of a Department, in the absence tion, what decision of your courts, what utter
of any law authorizing it to be made tempo ances of all the great statesmen who have in
rarily or otherwise, as did the act of 1795, is the past illustrated our history, have ever inti
unconstitutional and unlawful; and that is my mated that this provision of the Constitution
answer to all they have said on that subject. was a grant of power? It is nothing more,
But that act of 1795 is repealed by your stat
ute of 1867, as also by your act of 1863, as I

Senators, and no man and no human ingenuity

can torture this provision of the Constitution

shall claim. If the President may issue it, into anything more than a mere designation
it must be a commission according to his own

of the officer or person to whom shall be com

claim of authority, arising under this unlimited mitted, under the Constitution and subject to
executive prerogative, which can never expire

i.
:*
*

|

its limitations and subject to the further limit

but by and with his consent; and if any man ations of the law enacted in pursuance of the
can answer the proposition I should like to Constitution, the executive power of the Gov
have it answered now. If notwithstanding all ernment. Adopt the construction that it is a
that is on your statute-books; if, notwithstand: grant of power, and why not follow it to its
ing this limitation of your Constitution which I

have read, that his commissions to fill vacan

conclusions and see what comes of your Con
stitution, and what comes of the rights of the

28
people, of their power to limit by a written
Constitution every department of the Govern
ment? Is it not as plainly written in the Con
stitution that “all legislative powers herein
granted shall be vested in a Congress of the
United States, which shall consist of a Senate
and House of Representatives?'' Is anybody
to reason from that designation of the body to
whom the legislative power is assigned a grant
of power, and especially an indefinite authority,
to legislate upon such subjects as they please
without regard to the Constitution? Is it not
also just as plainly written in the Constitution
that “the judicial power of the United States
shall be vested in one Supreme Court and in
such inferior courts as the Congress may, from
time to time, ordain and establish’’ by law Ż
Is anybody thence to infer that this is an in
definite grant of power authorizing the Supreme
Court or the inferior courts of the United States

to sit in judgment upon any and all conceiv
able questions, and even to reverse by their de
cisions the power of impeachment lodged ex
clusively in the House of Representatives and
the judgment in impeachment authorized to
be pronounced exclusively and only by the
Senate of the United States?

-

faithfully executed; in this, that it declares
that every bill which shall have passed the Con
gress of the United States with or without his
consent shall be a law, to remain a law—and
that is the very point in controversy here be.
tween the President and the people—to be exe.
cuted as a law until the same shall have been

repealed by the power that made it or actually
reversed by the Supreme Court of the United
States in a case clearly within its jurisdiction
and within the limitations of the Constitution
itself?

It has been settled law in this country from a
very early period that the constitutionality of a

law should not be questioned much less adjudged
against the validity of the law, by a court clothed

by the Constitution with jurisdiction in the prem.
ises, unless upon a case so clear as to scarcely
admit of a doubt; and what is the result, Sen.
ators? That there is not—I feel myself justi.

fied in saying it, without recently having very
carefully examined the question—one clear,
unequivocal decision of the Supreme Court of

the United States against the constitutionality
of any law whatever enacted by the Congress
of the United States—not one. There was no
such decision as that in the Dred Scott case.

It will never do for any man to say that this
provision of the Constitution is a grant of

Lawyers will understand, when I use the word

power.

nounced by the court upon the issue joined
upon the record. There was no such decision
in that case, nor in any other case, so far as I
can recollect. On this subject, however, I

It is simply the designation of the

officer to whom the executive power of the
Government shall be committed under the lim

itations of the Constitution and the laws, as
“the Congress” is the designation of the

department to which shall be committed the
legislative power, and as “the courts” is the
designation of the department to which shall
be committed the judicial power; and upon
this subject I refer, also, to what Mr. Webster
said touching the limitations of the executive
authority:

“decision,” what I mean—the judgment pro

may be excused for reading a decision or two
from our courts.

In the case of Fletcher vs.

Peck, 6 Cranch, page 87, Marshall, delivering
the opinion, said:
“The question whether a law be void for its re
pugnancy to the Constitution is, at all times, a ques
tion of much delicacy, which ought seldom, if ever,
to be decided in the aiſiruative in a doubtful case.”

And again:

“It is perfectly plain and manifest, that, although
the framers of the Constitution meant to confer exec
utive power on the President, yet they meant to define
and limit that power, and to confer no more than
they did thus define and limit. When they say it
shall be vested in a President, they mean that one

law should be such that the judge feels a clear and
strong conviction of their incompatibility with each
other.”

magistrate, to be called a President, shall hold the
executive authority; but they mean, further, that
he shall hold this authority according to the grants

564, Chief Justice Savage says:

and limitations of the Constitution itself.”–4 Web
ster's Works, p. 186.

Does not the Constitution, Senators, define
and limit the executive power in this, that it
declares that the President shall have power to

“The opposition between the Constitution and the

In er parte McCollum, 1 Cowen's Reports,
“Before the court will deem it their duty to de
clare an act of the Legislature unconstitutional a
case must be presented in which there can be n0
rational doubt.”

In Morris vs. The People, 3 Denio, 381, the
the court say:

grant reprieves and pardons, &c.; in this, that

“The presumption is always in favor of the valid

it declares that the President shall have power

ity of the law, if the contrary is not clearly demon
strated.”

to appoint by and with the advice and consent
public officers; in this, that it provides that he
shall have power to make treaties by and with

I have read these, Senators, not that it was
really necessary to my argument, but to answer
the pretension of this President that he may

the advice and consent of the Senate?

come here to set aside a law, and in order to

of the Senate foreign embassadors and other
And

does it not limit his power in this, that it de;
clares that all legislative power shall be vested
in a Congress which shall consist of a Senate
and House of Representatives : in this, that it

justify himself assume the prerogative to do it

declares that the President shall take care that

in order that he may test its validity in the
courts of justice when the courts have never
ventured upon that dangerous experiment them.
selves, and, on the contrary, have thirty years

the laws which the Congress enacts shall be

ago, as I showed to the Senate yesterday, sol

29
emnly ruled, without a dissenting voice. that
the assumption of power claimed by the Presi
dent would defeat justice itself and annihilate
the laws of the people. I have done it also to
fortify the text of your Constitution and to
make plain its significance, which declares that
every bill which shall have passed the Congress
with or without the President's approval, even
over his veto, shall be a law. The language
is plain and simple. It is a law until it is
annulled; in the words of Hamilton, as recorded
in the seventh volume of his works, a law to
the President; a law to every department of
the Government, legislative, executive, and

judicial; a law to all the people.
It is in vain the gentlemen say that it is only
constitutional laws that bind. That is simply
begging the question. The presumption, as I
have shown you from the authorities, is that
every law is constitutional until by authority
it is declared otherwise, and the question here
is whether that authority is in Andrew John.
son. That is the whole question, whether that
authority is in Andrew Johnson. Your Con
stitution says it shall be a law. It does not

statute-book. He might come to the conclu
sion that they all interfered with and cut off
some power confided to him by the Constitu
tion

The position conflicts with every principle
of law and every principle of common sense.
if this discretionary power is in the President
no man can lay his hand upon him. That was
exactly the ruling of his Honor the Chief Jus
tice, in the Mississippi case, touching the exer
cise of certain discretionary power vested in
the President by the reconstruction act. His
judgment concludes everybody; the courts
cannot review his decisions, and unless you
charge him with corruption there is an end of
all inquiry. It was settled more than fifty
years ago in the case to which I referred yes
terday from memory, reported in 12 Wheaton,
and has never been challenged from that day
to this. I deny any such discretion in the
Executive, because it is a discretion incom

patible with the public liberties, because it is a
discretion in direct conflict with the express
letter of the Constitution, because it is a dis
cretion which vests him with more than kingly

mean that it shall remain a law after it shall

prerogative, because it is a discretion which

have been reconsidered by the law-making
power and repealed ; it does not say that it
shall remain a law to the hurt and deprivation

is a discretion which clothes the creature with

puts the servant above his master, because it
power superior to the power of its creator.

of private right after it shall have been adjudged

The American people will tolerate no such

unconstitutional in the Supreme Court of the

discretion in the Executive, by whomsoever
sanctioned or by whomsoever advocated.
When that day comes that the American peo

United States under the limitations of the Con

stitution and within their express jurisdiction;
but it does mean that until judgment be pro
nounced authoritatively in your tribunals of
justice, or that power be exercised authori

ple will tamely submit to this assumption of
authority that their President is above their

tatively by the people's Representatives in Con

defy either or both at his pleasure with im
punity, they will have proved themselves unfit

gress assembled, it shall be a law to the Presi

Constitution and above their laws, and may

dent, to every head of Department, as the court

custodians of the great trust which has been

ruled in the case from which I read yesterday

committed to their care in the interests of their
children and in the interests of the millions
that are to come after them. I have no fear

in 12 Peters, to every Representative in Con
gress, to every Senator, and every human

being within the jurisdiction of your laws.
Why do the gentlemen make this distinction

at all that it is only laws passed in pursuance
of the Constitution that are to bind? Why
not follow their premises to their logical con
clusions that the President of the United States,
as I took occasion to say yesterday, is by vir
tue of the prerogatives of his office vested with
the power judicially to interpret the Constitu.
tion for himself and judicially to decide for
the time being for himself the validity of every

law, and therefore may, with impunity, set
aside every law upon your statute-book, in the
words of his advocate, for the reason that he
has come to the deliberate conclusion that it

interferes with some power vested in him by
the people?
Senators, considering the operations of the
-

President's mind as manifested in his past offi
cial conduct, God only knows to what absurd
conclusions he might arrive hereaſter, if by
your judgment you recognize this unlimited
prerogative in him, when he comes to sit in
judicial judgment upon all the laws upon the

of the results with the people. Their instincts
are all right. They understand perfectly well
that the President is but their servant to obey
their laws in common with themselves, and to
execute their laws in mode and manner as the

laws themselves prescribe; and not to sit in
judgment day by day upon their authority to
legislate for themselves and to govern them

selves by laws duly enacted through their IRep
resentatives in Congress assembled.
And this brings me, Senators, to the point
made by the learned gentleman from New York
when he talked of that coming struggle in which
the President and his friends, headed doubt
less by the learned gentleman himself, would
march under the banner of the “supremacy of
the Constitution” against the “omnipotence of
Congress.” I have uttered no word, nor have

my associates uttered any word, that justified
any suggestion about the omnipotence of Con
gress. I can understand very well something
about the omnipotence of a Parliament under
the protection of a corrupt hereditary mon
arch, of whom it may be said, and is said by

30
his retainers, “He rules by the grace of God
and of divine right; ” but I cannot understand,
nor can plain people anywhere understand,
what significance is to be attached to this ex
pression, “the omnipotence of Congress " —a
Congress the popular branch of which is chosen
every second year by the suffrages of freemen.
I intend to utter no word, as I have uttered no
word from the beginning of this contest to this
hour, which will justify any man in intimating
that I claim for the Congress of the United
States any omnipotence. I claim for it simply
the power to do the people's will as required
by the people in their written Constitution and
enjoined by their oaths.
It does not result, because we deny the power

ment upon the House of Representatives, and
to say, as he did say, that, unmindful of the
obligations of our oaths, regardless of the re
uirements of the Constitution, forgetful of
łod and forgetful of the rights of our fellow
men, in the spirit of hate, we had preferred
these articles of impeachment.
It was not well for the gentleman, either, to
intimate that the Senate of the United States

had exercised a power that did not belong to
them, when, in response to the message of the
President of the United States of the 21st of

February, 1868, they had resolved that the act
done by the President and communicated to
the Senate, to wit, the removal of the head of

a Department and the appointment of a suc

of the Executive to sit in judicial judgment

cessor thereto without the advice and consent

upon the legislation of Congress, that uncon

of the Senate, was not authorized by the Con
stitution and laws. It was the duty of the
Senate, if they had any opinion upon the sub
ject, to express it; and it is not for the Presi
dent of the United States, either in his own
person or in the person of his counsel, to chal
lenge the Senate as disqualified to sit in judg

stitutional enactments, abuses of power, usurp
ations of authority, and corrupt practices on
the part of a Congress, are without remedy.
The first remedy under your Constitution is in
the courts of the United States, in the mode
and manner prescribed by your Constitution;
and the last great remedy under your Constitu
tion is with the people that ordain constitu
tions, that appoint Senators, that elect Houses
of Representatives, that establish courts of

ment under the Constitution as his triers upon
articles of impeachment, because, in the dis
charge of another duty, they had pronounced
against him. They pronounced aright. The

justice, and abolish them at their pleasure.

people of the United States will sanction their

The gentleman can alarm nobody by talking
about an omnipotent Congress. If the Con
gress abuse its trust let it be held to answer
for that abuse; but let the Congress answer

judgment whatever the Senate may think of it

eral way of the power assumed and exercised

somewhere else than to the President of the
United States. Your Constitution has declared

by the President and attempted to be justified
here is directly involved in this issue, and under

that they shall answer to no man for their
legislation or for their words uttered in debate,
save to the respective Houses to which they

º and

to that great people who appoint

tllelm.

-

Senators, that all that I have said in this gen

lies this whole question between the people and
this guilty President, no man can gainsay.
1. He stands charged with a misdemeanor
in office in that he issued an order in writing

for the removal of the Secretary of War during

That is my answer to the gentleman's clamor
about an omnipotent Congress.

themselves.

Among the

the session of the Senate, without its advice

and consent, in direct violation of express law,

American people there is nothing omnipotent

and with intent to violate the law.

and nothing eternal but God, and no law save
His and the laws of their own creation, sub

2. He stands charged, during the session of
the Senate, without its advice or consent, in
direct violation of the express letter of the
Constitution and of the act of March 2, 1867,
with issuing a letter of authority to one Lorenzo
Thomas, authorizing him and commanding him

ject to the requirements of those laws to which
the gentleman so eloquently referred the other
day, which he wrote upon the stone table
amid the earthquake and the darkness of the

mountain, and a part of which, I deeply regret

to assume and exercise the functions of Secre

to say, the gentleman, in his eloquent discourse,
both forgot and broke. We are the keepers
of our own conscience. It was well enough

tary for the Department of War.
3. He stands charged with an unlawful con
spiracy to hinder the Secretary of War from

for the gentleman to remind the Senators of

holding the office, in violation of the law, in
violation of the Constitution, in violation of
his own oath, and with the further conspiracy
to prevent the execution of the tenure-of-office
act, in direct violation of his oath as well as in
direct violation of the express provisions of

the obligations of their oath. It was well
enough for the gentleman to suggest to them,

so elegantly as he did, the significance of
those great words, “justice, law, oath, duty.”
It was well enough for him to repeat in the
hearing of the Senate and in the hearing of
this listening audience those grand words of

your statute; and to prevent, also, the Secre
tary of War from holding the office of Secre
the common Father of us all, “Thou shalt not tary for the Departinent of War; and with the
take the name of the Lord thy God in vain.” further conspiracy, by force, threat, or intimi.
but it was not well for the gentleman, in the dation, to possess the property of the United
heat and fire of his argument, to pronounce States and unlawfully control the same con
judgment upon the Senate, to pronounce judg trary to the act of July 20, 1861.

31
He stands charged further with an unlawful
attempt to influence Major General Emory to
disregard the requirements of the act making

he has violated your Constitution ; when we

appropriations for the support of the Army,
passed March 2, 1857, and which expressly
that a violation of its provisions shall
i.rovides
a high crime and misdemeanor in office. .

show that he has violated your laws; when we
show that he has defied the power of the Sen
ate even after they had admonished him of the
danger that was impending over him 2 The
answer is, that he is vested with an unlimited
prerogative to decide all these questions for

He stands further charged with a high mis
demeanor in this, that on the 18th day of Au

impeachment in the courts of justice until

himself, and to suspend even your power of

future day, which day may never come,
gust, 1866, by public speech he attempted to some
when it will suit his convenience to test the
excite resistance to the Thirty-Ninth Congress

and to the laws of its enactment.
He stands further charged with a high mis
-

validity of your laws and consequently the

-

demeanor in this, that he did affirm that the

uprightness of his own conduct before the Su
preme Court of the United States. There

Thirty-Ninth Congress was not a Congress of
the United States, thereby denying and intend

ticed since man was upon the face of the earth.

ing to deny the validity of its legislation except
in so far as he saw fit to approve it, and deny

States, it is simply an insult to human under

never was a balder piece of effrontery prac.
I care not if he be President of the United

standing to press any such defense in the pres
ing its power to propose an amendment to the ence
of his triers.
Constitution of the United States; with devis

ing and contriving means by which he should

I have said enough and more than enough

prevent the Secretary of War, as required by
the act of the 2d of March, 1867, from resum
ing forthwith the functions of his office, after
having suspended him and after the refusal of
the Senate to concur in the suspension; and

to show that the matter charged against the
President, is impeachable. I waste no words
upon the frivolous question whether the articles
have the technical requisites of an indictment.
There is no law anywhere that requires it.
There is nothing in the precedents of the Senate
of the United States, sitting as a high court of
impeachment, but condemns any suggestion of
the kind. I read, however, for the perfection of

with further devising and contriving to prevent
the execution of an act making appropria
tions for the support of the Army, passed
March 2, 1867, and further to prevent the exe
cution of the act to provide for the more effi
cient government of the rebel States.
-

That these several acts so charged are im

my argument rather than for the instruction of
the Senate, from the text of Rawle on the Con
stitution, (p. 216,) in which he declares “that

peachable has been shown. . To deny that articles of impeachment need not be drawn up
they are impeachable is, as I have said, to with the precision and strictness of indictments.
into their master, the executor of their laws

It is all-sufficient that the charges be distinct
and intelligible.” They are distinct and in
telligible; they are well enough understood,

into the violator of their laws.

place the President above the Constitution and

the laws, to change the servant of the people
The Constitu

even by the smallest children of the land who

tion has otherwise provided, and so it has been
otherwise interpreted by one of the first writers

are able to read their mother tongue, that the
President stands charged with usurpation of

upon the law in America; I refer to the text

power in violation of the Constitution, in vio

of Chancellor Kent, which the gentlemen were
careful not to read:
“In addition to all the precautions which have

lation of his oath, in violation of the laws;
that he stands charged with an attempt to sub
vert the Constitution and laws, and usurp to

been mentioned to prevent abuse of the executive
trust in the mode of the President's appointment,

vested in the legislative and judicial, as well as

his term of office and the precise and definite limita
tions imposed upºn the exercise of his power, the
Constitution has also rendered him directly amena

ble by law for maladministration. The inviolability
of any officer of Government is incompatible with
the republican theory, as well as with the pringiples
of retributive justice. The President, Vice Presi
dent, and all civil officers of the United States may
be impeached by the House of Representatives for
treason, bribery, and other high, crimes and misde
meanors, and upon conviction by the Senate re
moved, from office. If, then, neither the sense of
duty, the force of public opinion, nor the transitory
nature of the seat are sufficient to secure a faithful
discharge of the executive trust, but the President
will use the authority of his station to violate the

himself all the powers of the Government
in the Executive Departments.

Touching the proofs, Senators, little need
be said. The charges are admitted substan
tially by the answer. Although the guilty in
tent is formally denied by the answer and at
tempted to be denied in argument, the accused
submits to the judgment of the Senate that,
admitting all the charges to be true, admitting
them to be established as laid, nevertheless he
cannot be held to answer before the Senate for

high crimes and misdemeanors, because it is

Constitution or law of the land, the House of Rep

his prerogative to construe the Constitution

resentatives can arrest him in his career by resort

for

ing to the power of impeachment.—1 Kent's Comment
aries, p. 289.

º to determine the validity of your
laws for himself, and to suspend the people's
power of impeachment until it suits his con

And what answer is made when we come to venience to try the question in the courts of
your bar to impeach them ; when we show him

guilty of maladministration as no man ever
was before in this country; when we show that

justice. That is the whole case; it is all there
is to it or of it or about it, after all that has
been said here by his counsel, and that was

32
the significance of the opening argument, that
he could only be convicted of such high crimes
and misdemeanors as are kindred with treason

and bribery.

I believe I referred to that sug

gestion yesterday and asked the Senate to con
sider that the offenses whereof he is charged,
whereof he is clearly guilty, and which he con
fesses himself in his answer are offenses which

touch the nation's life and endanger the public

liberties, and cannot be tolerated for a day or
an hour by the American people. I proceed,
then, Senators, as rapidly as possible, for I
myself am growing weary of this discussion
Mr. SHE IN MAN.

Mr. President, if the hon

orable Manager desires to pause at this mo
ment in his argument, I will move that the
Senate take the usual recess.

Mr. Manager BINGHAM. I hope to be able
to close my argument to-day, and if it is the
pleasure of the Senate to take the recess now
I will yield; but

Mr. EDMUNDS. Would you prefer it now
or to proceed half an hour longer?
Mr. Manager BINGHAM. I will proceed
for half an hour and then a recess can be taken.

Mr. SHERMAN.

Very well; I withdraw

my motion.

whole of the act of 1789; and that part of their
argument was very significant as proving that
it was competent for the Congress of the Uni
ted States to put an end to all this talk about
the tenure of an office depending, in any sense
of the word, upon the language of a commis

sion. It depends exclusively upon the pro
visions of existing laws. The act of 1867 has
repealed the act of 1789, and it repealed the
act of 1795 as well. That law provided for the
suspension of all officers theretofore appointed
and commissioned by and with the advice and
consent of the Senate, and it provided for the
suspension of all civil officers thereafter ap:
pointed by and with the advice and consent of
the Senate, and no kind of sophistry can evade
the plain, clear words of the law.
The gentlemen undertake to get up a distinc
tion here between the office and the person who
holds the office.

No such distinction will avail

them. This act of 1867 puts an end to all such
quibbling. The office and the person who fills
it are alike under the protection of the law
and beyond the reach of the Executive, except
as limited and directed by the law, and no man
can gainsay it.
“Every person ''—

Mr. Manager BINGHAM. The first ques.
tion that arises, Senators, under the first article,

I suppose that does not mean an office
merely—

is whether Mr. Stanton was the Secretary of
War. That he was duly appointed in 1862 by

“Every person holding any civil office to which he
has been appointed by and with the advice and con

and with the advice and consent of the Senate

is conceded.

About that there is n question.

As ſhe law then stood he was entitled to hold
the office under his commission until removed

sent of the Senate, and every person who shall here
after be appointed to any such office, and sh ill become
duly qualified to act thereiu, is and shail be entitled
to hold such office until a successor sh: l l have been

in like manner appointed and duly qualified, except

by authority of the act of 1789 or by the au

as herein otherwise provided.”

thority of some other existing act in full force

“Herein otherwise provided” had relation
to the second section, which made provision

at the time of his removal; or otherwise he
was not removable at all without the advice and

consent of the Senate. That is the position I
take in regard to this matter, and I venture to

for temporary removal by suspension:
“Provided, That the Secretaries, of State, of the
Treasury, of War, of the Navy, and of the Interior,
Postmaster General, and the Attorney General,

the

say before the Senate that there is not one single
word in the records of the past history of this
country to contradict it. The act of 1780, as I

si, all hold their offices respectively for and during the
term of the President by who in they may have been

appointed and for one month thereafter, subject to

have said before, authorized the removal; but

removal by and with the advice and couseut of the
Seuate.

we shall see whether that act authorized his
removal in 1857.

officer appointed as a foresaid, excepting judges of

-

Sec. 2. And be it further enacted. That when any

The gentlemen seem to think the tenure of
his office depended upon the words of a com

Senate, be shºwn, by evidence satisfactory to the
President, to be guilty of misconduct in office or

mission.

crime, or for any reason shall become incapable of
leg ally disqualified to perforum its duties, in such case,

If that were so I would surrender

the question; but I deny it. The tenure of
his ollice depended upon the provisions of the
Constitution and the existing law then or after
ward in force, whatever it might be. There is
no vested power in the President of the Uni
ted States on this subject beyond the reach of

|

the United States courts, shall, during a recess of the

and in 119 other, the President may suspend such
officer and designate some suitable person to perform
temporarily tile duties of such office.”

“In such case, and in no other.”

What

case? That he shall have become temporarily
disqualified, incapable, or legally disqualified,

legislation; and he never had any power what
ever over the question except that joint power
with the Senate, to which i have referred, in
the Constitution, and the power expressly con
ferred by the legislation of Congress. The
power that conferred it clearly might take it
away. The tenure-of-office act changed the

or shall be guilty of misdemeanor in office or

law of 1789. The gentlemen have made elab
orate arguments, showing that the act of 1863

dence satisfactory to the President, to be guilty of

.

did not necessarily, by repuguancy, repeal the

its duties, in such case, aud in no other,” &c.

º

crime in such case and no other shall the
President suspend him. . What other condi.
tion is there?

That it shall be in the recess

of the Senate, and so the section says:
“That, when any officer”. * : *, * : * ,
“shall, during a recess of the Senate, be shown, by evi,
misconduct in ollice or crime, or for any reason shal
become incapable or legally disqualified to perforu

33
During the recess of the Senate, and not at
any other time, shall the President suspend
him and report within twenty days after their
next meeting to the Senate the fact of suspen
sion, the reasons and the evidence upon which
it is made.

There is a law so plain that no

man can misunderstand it—a plain, clear, dis
tinct provision of the law, that in such case and
no other, to wit, during the recess and for the
reasons, and only the reasons, named in the
statute, shall he suspend from office any person
heretofore appointed by and with the advice
and consent of the Senate, or who may be

dent has more fully developed his character.
It is understood now by the whole country, by
the whole civilized world, that he has under
taken to usurp all the powers of this Govern
ment and to betray the trust committed to him
by the people through their Constitution.
The Secretary is said to be excepted by the
proviso from the body of the statute. It is an
afterthought. The President himself in his mes
sage, which I will take the liberty to cite, in
the report notified the Senate that if he had

supposed any member of his Cabinet would
have availed himself of the law to retain the

hereafter appointed by and with the advice and

office against his will he would have removed

consent of the Senate.

him without hesitation before it became a law.

It is admitted that the Secretary of War and
every other officer appointed with the advice
and consent of the Senate, holding at the time
of the enactment of this law, was within the

all supposed he was within the law.
Again, the President is concluded on this

provisions of the body of the act. The Presi
dent himself is prohibited by the act from
removal, as he was authorized by the act of
1789 to make removals. There is no escape
from the conclusion if gentlemen admit the

validity of the law. What next? It is at
tempted to be said here that from the body of
this act the Secretaries appointed by Mr. Lin

coln were excepted. Who, pray, says that?
I have just read to you the commanding words
of Mr. Webster that exceptions, unless clearly

expressed in the law, are never to be implied
except where a positive necessity exists for
their implication. It is a sound rule of con
struction. Who says that the heads of De

partments appointed by Mr. Lincoln are by
the proviso excepted from the body of this act?
e gentlemen, in the absence of any further

reason, undertook to quote from the speech of
my learned and accomplished friend, the Sen
ator from Ohio, forgetting that one line of his

speech declares expressly, by necessary intend:
ment, that the existing Secretaries at the head
of Departments were within the provisions of
the law, wherein he says that if the Secretary
would not withdraw or resign upon the politest
juggestion from the President he himself would
consent to his removal. What significance can
be attached to these words if they do not mean
this: that by this law the President after all

He supposed then he was within the law; they
question, Senators, because on the 12th day
of August, 1867, he issued an order suspend
ing Edwin M. Stanton, Secretary of War,
under this act. What provision is there in the

Constitution authorizing the President to sus
pend anybody for a day or an hour—a head
of Department, from office? Nobody ever
claimed it; nobody ever exercised it. It is a
thing unheard of altogether in the past history
of the country. It never was authorized by any
law, save the act of March 2, 1867, the tenure
of-office act. The language of the act is “sus
pension;” and, Senators, pardon me, for I do
not intend that this confessedly guilty man
shall change front in the presence of the Sen

ate in order to cover up his villainy.

In his

message to the Senate he not only quotes the
word of the statute that he had suspended him,
but he quotes the other word of the statute,
that the suspension was not yet “revoked.”
I ask you, Senators, when that word ever be
fore occurred in the executive papers of a
President of the United States, that he had
“revoked ” a suspension. It is the word of
the tenure-of-office act that the President may,

if he becomes satisfied that the suspension is
made without just cause, revoke it; and he
communicates to the Senate that the suspen
sion was not yet revoked. He thought he was
within the statute when he suspended him.
He thought he was within the statute when he

may not be permitted to remove the Secretary

communicated to the Senate that he had not

of War, but if he politely requests him to

resign, and he should refuse to resign, the

yet revoked the suspension. He thought he
was within the statute when, in obedience to its

Senator would himself consent to his removal 2

express requirement, within twenty days after

As the matter then stood, the Senator was

the next meeting of the Senate, he did, as

doubtless entirely justified before the country
in coming to § conclusion, for facts had
not sufficiently disclosed themselves to show
the necessity of the Secretary of War retaining
his office in the light of the solemn decision

required by the law, report the suspension to the
Senate, together with the reasons and the evi
dence on which he made the suspension. It is
too late for any man to come before the Senate

and say that the President of the United States
did not himself believe that the Secretary of
spite of the President, under cover of that War was within the operation of the statute;
decision, to interpret the law for himself, to that he believed that he was excepted from its
stand by the law for himself, subject to im provisions by the operation of the proviso.
peachment if he abused the trust, and in the
Moreover, his letter to the Secretary of the
words of the court not to take the law from the Treasury, reciting the eighth section of the
President. Times have changed. The Presi tenure-of-office act, and notifying him that he

of the Supreme Court that he was at liberty in

2.—B.

34
had suspended Edwin M. Stanton, was a fur
ther recognition of the fact on his part that Mr.

legally disqualified; and this is the very crime

there are no express words that bring the

charged against him in the eleventh article of
impeachment, that he did attempt to violate
the provisions of the tenure-of-office act in
that he attempted to prevent Edwin M. Stan
ton, Secretary of War, from resuming the
functions of the office or from exercising the

Secretary of War, Edwin M. Stanton, within
the proviso. That is his own position, and

with the advice and consent of the Senate in

Stanton was within the provisions of the act.
But that is not all.
own counsel who

#.

opened the case, [Mr. Curtis, ) as will be seen
by a reference to his argument, declares that

that being so, he must be within the body of
the statute. There is no escape from it.
There has been further argument, however,

on this subject, that the President did not in
tend to violate the law.

office to which he had been appointed by and
direct violation of the provisions of the act itself.
Now, what are his reasons? The President

is concluded by his record and in the presence
of the American people is condemned upon his

If he believed he was

record. What are his reasons? Let the Senate

within the statute, and suspended him under
the statute and by authority of the statute, and

reported in obedience to the statute to the

answer when they come to deliberate. What
evidence did he furnish this Senate, in the
communication made to it, that Edwin M.

Senate within the next twenty days, with the
reasons and the evidence upon which he made

to discharge the duties of that office?

the suspension, it will not do to come and say

evidence did he furnish the Senate that he had

now that the President did not intend to vio

been guilty of any misdemeanor or crime in

Stanton had become in any manner disqualified
What

late the law, that he did not think it obiigatory

office?

upon him. If he did not think it obligatory
upon him, why did he obey it in the first, in
stance—why did he exercise power under it at

legally disqualified, in the words of the statute?

all? There is but one answer, Senators, that

his own showing, judged by his own record,

can be given, and that answer itself covers the

suspended Edwin M. Stanton from the office
of the Secretary of War and appointed a suc.
cessor without the presence of any of the

President with ignominy and shame and re

proach. It is this: “I will keep my oath ; I
will obey the law; I will suspend the head of a
Department under it by its express authority
for the first time in the history of the Republic;
I will report the suspension to the Senate, to

º with the reasons and the evidence upon
which the suspension was made; and if the
Senate concur in the suspension I will abide

by the law; if the Senate non-concur in the
suspension I will defy the law, and fling my

What evidence was there that he was

None whatever. It results, therefore, Senators,

that the President of the United States, upon

reasons named in the statute, and he is con

fessedly guilty before the Senate and before
the world, and no man can acquit him.
Mr. WILSON. I move that the Senate take
a recess for fifteen minutes.

The motion was agreed to ; and, at the expi.
ration of the recess, the Chief Justice resumed
the chair and called the Senate to order.

own record in their face, and tell them that it

Mr. Manager BINGHAM. Mr. President
and Senators, when the recess was taken I had

is my prerogative to sit in judgment judicially
upon the validity of the statute.” That is the

said all that I desired, and all that I think
it needful to say, to show that the President
of the United States, himself being witness

answer, and it is all the answer that can be
made to it by any man.

I admit, Senators, upon this construction of
the law, for I have not yet done with it, that
the President in the first instance, as to the

suspension within the limitation of the law, is
himself the judge of the sufficiency of the
reasons and the evidence in the first instance,
and that he is not to be held impeachable for

any honest error of judgment in coming to that
conclusion.

It would be a gross injustice to

hold him impeachable for any honest error of
judgment in coming to his conclusion that the
Secretary of War was guilty of a misdemeanor

upon his own messages sent to the Senate of
the United States, has been guilty, and is guilty,
in manner and form as he stands charged in
the first, second, third, eighth, and eleventh

articles of impeachment. It does seem hard,
Senators, and yet the interest involved in this
question is so great that I do not feel myself
at liberty to fail to utter a word that might,
perhaps, be uttered fitly in this presence in
the cause of the people, but it seems hard to
be compelled to coin one's heart's drops into
thoughts to persuade the Senate of the United
States that a man who stands self-convicted

or crime in office, that he had become inca

on their records ought to be pronounced

pable or legally disqualified to hold the office.

guilty.

It touches the concern of every man

But the President is responsible if, without in this country whether the laws are to be
any of the reasons assigned by the law, he supreme, whether they are to be vindicated,
nevertheless availcd himself of the power con whether they are to be executed, or whether
ferred under the law to abuse it and suspend at last, after all that has passed before our
the Secretary of War though he knew he was eyes, after all the sacrifices that have been
not disqualified for any reason, though he made, after the wonderful salvation that has
knew that there was no colorable excuse for been wrought by the sacrifice of blood in the
charging that he was guilty of misdemeanor vindication of the people's laws, their own
or crime or that he had become in any manner Chief Magistrate is to renew the rebellion with

35
impunity and violate the laws at his pleasure
and set them at defiance.
When the Senate took its recess I had

shown, I think, to the satisfaction of every can

did mind within the hearing of u.y voice, that
the President without colorable excuse had

availed himself of the authority conferred for
the first time by the laws of the Republic to

suspend the head of a Department and had
disregarded at the same time its express limit.

ation, which declares that he shall not suspend
him save during the recess of the Senate, and
then only for the reason that from some cause
he has become incapacitated to fill the office,
as by the visitation of Providence, or has be

come legally disqualified to hold the office, or
is guilty of a misdemeanor or of a crime.
Without the shadow of evidence that your Sec

retary of War was incapacitated; without the
shadow of evidence that he was legally disqual
ified; without the shadow of evidence that he
was guilty of a misdemeanor or a crime, he dared

to suspend him and to defy the people, in the

presence of the people's tribunes, who hold him
to answer for the violation of his oath, for the
violation of the Constitution, and for the vio
lation of the law. Senators, whatever may be
the result of this day's proceeding, impartial
history, which records and perpetuates what
men do and suffer in this life, will do justice

to your slandered and calumniated Secretary
of War.

The gentleman [Mr. Groesbeck] spoke of
him but yesterday as being a thorn in the heart
of the President. The people know that for
four years of sleepless vigilance he was a thorn
in the heart of every traitor in the land who
lifted his hands against their flag and against
the sanctuary of your liberties. He can afford
to wait; his time has not come. His name
will survive the trial of this day and be remem
bered with the names of the demigods and
the heroes who, through an unprecedented
conflict, saved the Republic alive; and I
charge your recusant President with calumny,
with slander, when he suspends the Secretary

of War under pretense, in the words of your

upon the pages of history as one who was
“faithful found among the faithless;” a man

equal in the discharge of his office, in every
quality that can adorn or ennoble or elevate
human nature, to any man of our own time or
of any time; a man that was “clear in his great
office;” a man who “organized victory” for
your battalions in the field as man never organ
ized victory before in the Cabinet councils of
a people since nations were upon the earth;
and this man is to be suspended by a guilty

and corrupt and oath-breaking President,
under a law which he defies, and under the
hollow and hypocritical pretense that he was
guilty of misdemeanor or crime or, in the

language of the law, had become otherwise
legally disqualified from holding the office.
I dismiss the subject. The Secretary needs
no defense from me. And yet it was fit, in

passing, that I should take this notice of what
the President has done, not simply to his hurt,

but to the hurt of the Republic.

I have said

enough, Senators, to satisfy you, and to satisfy
all reasonable men in this country, that the
President, when he made this suspension of
the Secretary of War, had no doubt of the

validity of this law, of its obligation upon him,
and that the Secretary was within its provis
ions; and hence, availing himself of its ex

press provisions, he did suspend him and made
report, as I have said, to the Senate.
Now, what apology or excuse can be made
for this abuse of the powers conferred upon
the President, and of which he stands charged
by impeachment here this day in that he has
abused, in the language of the authority which

I read yesterday in the hearing of the Senate,
assented to in the Senate on the trial of Jus

tice Peck without a dissenting voice, abused
the power conferred upon him by the statute 2
The counsel may doubt, or affect to doubt,
the tenure-of-office act; the President never
doubted it until he was put on trial. When
it was presented to him for his approval it
was a question with him whether it was in ac

cord with the Constitution ; but after Congress

statute, that he was guilty of a misdemeanor
or a crime in office or had become legally dis

had passed it by a two-thirds vote over his veto
in the mode prescribed by the Constitution
the President thenceforward, until he was im

qualified. He was legally disqualified, undoubt

peached by the people's Representatives, recog

edly, judging him by the President's standard,

nized the obligation of the law and the plain,
simple words of the Constitution, that if the
bill be passed by a two-thirds vote over his veto

if the qualification of office is an utter disre
gard of the obligations of an oath. He was
guilty of a misdemeanor and crime, undoubt
edly, if, according to the President's standard,
he was guilty of consenting that the Executive
of the § States may, at his pleasure, sus

pend the people's laws and dispense with their
execution—those laws which are enacted by
themselves and for themselves and are for their

protection, both while they wake and while
they sleep, at home and abroad, on the land
and on the sea.

Your Secretary of War, Senators, whatever

may be the result of this day's proceeding, will
stand, as I said before, in the great hereafter,

it shall become a law to himself and to every
body else in the Republic.

The counsel, however, doubt the validity of
the law. They raise the question in the an
swer; they raise it in the argument. They
intimate to the Senate that it is unconstitu

tional, and they state a very plain and very.
simple proposition. It is really a grateful
thing—it is to me a very grateful thing—to
be able to agree with counsel for the Pres
ident upon any legal proposition whatever.
They do state one proposition to which I en
tirely assent; and that is, that an unconstitu

36
tional law is no law.

But it is no law to the

office in the event that the Senate shall non

President, it is no law to the Congress, it is no
law to the courts, it is no law to the people,
only after its constitutionality shall have been
decided in the mode and manner prescribed
by the Constitution; and the gentleman who
so adroitly handled that text as it came from
the mighty brain of Marshall, knew it to be the

concur in the suspension, and notify the Secre
tary of the fact of non-concurrence, all of

rule governing the case just as well as anybody
else knows it.
been reversed.

It is a law until it shall have
It has not been reversed. To

which appears on your record, to prevent the
Secretary from so assuming his office. The
President, in his letter to General Grant of

February 10, 1868, to be found on page 234
of the record, says:
“First of all, you here admit that from the very
beginning of what you term “the whole history’ of
your connection with Mr. Stanton’s suspension, you
intended to circumvent the President. It was to

assume any other position would be to subject
the country at once to anarchy, because, as I
may have occasion to say in the progress of
this argument, the humblest citizen in the land
is as much entitled to the impunity which that

carry out that intent that you accepted the appoint
ment. This was in your mind at the time of your

roposition brings as is the President of the

ton from resuming the office of Secretary of War.”
How could he know it if that was not the

*.

States. It does not result, however,
that the humblest citizen of the land, in his

cabin upon your western frontier, through
whose torn thatch the wintry rains come down,

acceptance.

It was not, then, in obedience to the

order of your superior, as has heretofore been sup—

...',
that you assumed the duties of the offige. You
new it was the President’s purpose to prevent Mr. Stan–
President's purpose? It would be, it seems to
me, and I say it with all reverence, beyond the

and through whose broken walls the winds blow

power of Omnipotence itself to know a thing
that was not to be at all, and could not by any

at pleasure, is at liberty to defy the law upon

possibility be, and did not exist.

the hypothesis that it is unconstitutional and

it was the President's purpose to prevent Mr.
Stanton from resuming the office of Secretary
of War.” And what says the law 2 That it
shall be the duty of the suspended Secretary,
if the Senate shall non-concur in the suspen

to decide it in advance. The same rule applies
to your President. Your Constitution is no
respecter of persons.
Is, then, this law constitutional, is it valid,

and did the President intend to violate its pro
visions? Senators, I said before that the rule
of the common law and the common sense of

mankind is, that whenever a man does an un
lawful act, himself being a rational, intelli
gent, responsible agent, he intends precisely
what he does, and there is an end to all fur
ther controversy. It sometimes happens, how
ever, because in the providence of God truth
is stronger than falsehood—it is linked to the
Almighty, and partakes in some sort of his

omnipotence—that a guilty conscience some

“You knew

sion, “forthwith to resume the functions of the
office.” And yet the Senate are to be told
here that we must prove intent! Well, we have

proved it; and what more are we to prove
before this man is to be convicted and the

people justified in the judgment of their own
Senators? He says to General Grant in this

letter, “It was my purpose, and you knew it,
to prevent Mr. Stanton from resuming the
functions of his office.”

-

I give him the benefit of his whole confession.
There is nothing in this stammering utterance

times makes confessions and thereby contrib

of this violator of oaths and violator of Con

utes to the vindication of violated law and the

stitutions and violator of laws, that can help

administration of justice between man and man

him either before this tribunal or any other tri
bunal constituted as this is of just and upright

in support of the rights of an outraged and
violated people. So it has happened, Sen
ators, to the accused at your bar.

The Presi

men.

He says further on :

dent of the United States was no exception to

“You knew the President was unwilling to trust
the office with any one who would not, by holding it,

that rule that murder will out.

compel Mr. Stanton to resort to the courts.”

He could not

It possessed him; it con

And he knew as well as he knew anything,

trolled his utterances, and it compelled him,
in spite of himself, to stammer out his guilty
purpose and his guilty intent, and thereby

that if he prevented Mr. Stanton from resum
ing the office, Mr. Stanton could no more con
test that question in your courts of justice than
can the unborn; and the man who does not
know it ought to be turned out of the office

keep his secret.

silence the tongue of every advocate in this
Chamber and of every advocate outside of
this Chamber who undertakes to excuse him

on the ground that he did not intend the
necessary consequences of his own act.

He

did intend them and he confesses it.
And now I ask the Senate to note what is

•recorded on page 234 in the record, in his let

that he disgraces and dishonors for natural
stupidity. He has abused the powers that
have been given him. A man who has sense
enough to find his way to the Capitol ought to

have sense enough to know that. And yet
this defense goes on here and the people are
mocked and insulted day by day by this pre

ter to General Grant, and see what becomes
of this pretense that the intent is not proved ;
that he did not intend to violate the law; that
he did not intend, in defiance of the express
words of the law, which are that the Secretary

tense that we are persecuting an innocent man,
a defender of the Constitution, a lover of
justice, a respecter of oaths!
have said, Senators, in the progress of this

shall forthwith resume the functions of his

discussion, that this pretense of the President

37
is an afterthought.

The letter which I have

just read is of date, you remember, February

10, 1868, in which he says that his object was
to prevent Mr. Stanton from resuming the
office. Then there is another assertion, which
is also an afterthought, that he wished to drive
him into the courts to test the validity of the
law. If he prevented Mr. Stanton's resump
tion of the office there was an end of it, he never
could get into the courts; and that question
has been settled also in this country, and is no
longer an open question, and the President
knew it.

The question has been ruled and set

tled, as I stated long ago in the progress of this
controversy, in the case of Wallace vs. Ander
son, 5 Wheaton, 291, where Chief Justice Mar
shall, delivering the opinion of the court, says:
“A writ of quo warranto—”

laws of this country for saying that he could
institute the proceeding. If he could not in
stitute the proceeding, then, I ask again, why
insult the people by mocking them with this
bald, hypocritical assertion that his only pur

pose in all he did was to institute a proceeding
on his own motion in the Supreme Court of
the United States to test the validity of the

people's laws? It is only another illustration,
surrounded as the President is by gentlemen
learned in the law—and I cast no reproach

upon them in saying it, for it was their duty
to defend him ; it was their duty to bring to
his defense all their experience, all their learn

ing, and all those great gifts of intellect and
of heart with which it has pleased Providence

to endow them—but at last it is only another
evidence of what I said before, that, notwith

And it is the only writ by which the title to

º: office could be tested under your present
aw S

“could not be maintained except at the instance of
the Government, and as this writ was issued by a
private individual without the authority of the Goy
ernment it could not be sustained, whatever might
be the right of the prosecutor or of the person claim
ing the office in question.”

This high court of impeachment, Senators,
is the only tribunal to which this question could
by possibility be referred. Mr. Stanton could
not bring the question here; the people could,
and the people have, and the people await your
judgment.

standing the advice and counsel of his learned
and accomplished defenders, truth is at last
stronger than falsehood, and only illustrates
the grand utterances of that immortal man who
in his blindness meditated a song so sublime

and holy that it would not misbecome the lips
of those ethereal virtues that he saw with that

inner eye which no calamity could darken or
obscure, when he said—
“Who knows not that truth is strong,
Next to the Almighty.”

The President simply utters another false
hood when he comes before the Senate and

says that his purpose in violating his oath, in

How does the President's statement that it was

violating your Constitution, in violating your
laws, was, that he might test the validity of

to compel Mr. Stanton to resort to the courts

the statute in the Supreme Court of the United

Senators, I now ask you another question.
that he suspended him stand with the pretense
of the President's answer that his, the Presi
dent's, only purpose was to have the Supreme
Court pass upon the constitutionality of the
law 7 A tender regard this for the Constitu

tion. He said this was his only purpose in
breaking the law, the validity and the obliga
tion of which, in the most formal and solemn

manner, he had recognized by availing him
self of its express grant to suspend the head of
a Department from the functions of his office,

and to appoint temporarily a successor and
report the fact to the Senate; and he now
comes with his answer and says that his only
purpose was to test the validity of the law in
the Supreme Court | If that was his sole pur
ose how comes it that the President did not

institute the proceeding 2 The Senate will
answer that question when they come to pass

upon the defense which the President has
incorporated in his plea. How comes it that
he

§ not institute

the proceeding?

I think

States, when he knew he had no power under
the Constitution and laws to raise the question

at all. There ends that part of the defense,
and there I leave it.
The written order for the removal of the

Secretary of War and the written letter of
authority for the appointment of Lorenzo
Thomas to the office of Secretary for the De

partment of War are simply written confes
sions of his guilt in the light of that which I
have already read from the record, and no man
can gainsay it. I dispose, once for all, of this
uestion of intent by a text that doubtless is

familiar to Senators. The evidence being in
writing the intent necessarily results, if I am
right at all in my apprehension of the rule of
law. I read from page 15 of 8 Greenleaf:
“For though it is a maxim of law, as well as the

dictate of charity, that every person is to be pre
sumed innocent until he is proved to be guilty; yet

it is a rule equally sound that every sane person
must be supposed to intend that which is the ordi
nary and natural consequences of his own purposed

act. Therefore, 'where an act, in itself indifferent,

if the venerable Senator from Maryland, [Mr.
Johnson, full of learning as he is full of years,
were to respond here and now to that inquiry,

he would answer: “Because it was impossible
for the President to institute the proceeding.”
Mr. Chief Justice, it is well known to every
jurist of the country, as the question stands
and as the President left it, that there is no
colorable excuse under the Constitution and

becomes criminal if dome' with a particular intent,

there the intent, must be proved and found ; but

where the act is in itself unlawful the proof of justifi
cation or excuse lies on the defendant; and, in fail
ure thereof, the law implies a criminal intent.”

Was the act unlawful?

If your statute was

valid it clearly was, for your statute says, in
the sixth section:

“That every removal, appointment, or employ
ment made, had, or exercised contrary to the pro

38
visions of this act, and the making, signing, sealing,
countersigning, or issuing of any commission or let
ter of authority for or in respect to any such appoint
mentor employment. shall be deemed, and are hereby
declared to be, high misdemeanors; and, upon trial
and conviction thereof, every person guilty thereof
shall be punished by a fine not exceeding $10,000 or

by imprisonment not exceeding five years, or both

question of this nature when the further pro
vision of the statute is that—

. “The making, signing, sea'ing, countersigning.or
issuing of any commission or letter of authority for
ment shall be deemed, and are hereby declared to be,

or in respect to any such appointinent or employ
high misdemeanors.”

said punishments, in the discretion of the court.”

The issuing of the order, the issuing of the
Senators, is it an unlawful act within the
text of Greenleaf” That surely is an unlawful
act the doing of which is by the express law
of the people declared to be a penal offense
punishable by fine and imprisonment in the

letter of authority of and concerning the ap
pointment is, by the express words of your
law, made a high misdemeanor. Who is there
to challenge this here or anywhere? What

penitentiary. What answer do the gentlemen

can be made to it? None, Senators, none.
When the words of a statute are plain there is
an end to all controversy; and in this, as in

make?

How do they attempt to escape from

this provision of the law? They say, and it
did amaze me, the President attempted to re
move the Secretary of War, but he did not
succeed.

Are we to be told that the man who

makes an attempt upon your life here in the
District of Columbia, although if you are to
search never so closely the statutes of the
United States you would not find the offense
definitely defined and its punishment pre
scribed by statute—are we to be told that be
cause he did not succeed in murdering you
outright he must go acquit to try what suc
cess he may have on another day and in another

place in accomplishing his purpose? Senators,
I have notified you already of that which you
do know, that your act of 1801, as well as your
act of 1831, declares that all offenses indictable
at the common law committed within the Dis
trict of Columbia shall be crimes or misde

meanors, according to their grade, and shall
be indictable and punishable in the District of
Columbia in your own courts.
I listened to the learned gentleman from
New York the other day upon this point, and

for the life of me (and I beg his pardon for
saying it) I could not understand what induced

the gentleman to venture upon the intimation
that there was any such thing possible as a
defense for the President if they admit the

unlawful attempt to violate this law by admit
ting the order to be an unlawful attempt.

I

say, with all respect to the gentlemen, that it
has been settled during the current century
and longer, by the highest courts of this coun
try and of England, that an attempt to commit
a misdemeanor, whether the misdemeanor be
one at common law or a misdemeanor by stat
ute law, is itself a misdemeanor; and in sup

port of that I read from 1 IRussell:
“An attempt to commit a statutable misdemeanor,
is as much indictable as an attempt to commit a com
mon-law misdemeanor; for when an offense is unade
a misdemeanor by statute, it is ºmade so for all pur
poses. And the general rule is, that ‘an attempt to
commit a misdemeanor is a misdemeanor, whether

the offense is creaſed by statute, or was an offense at
common law.’”—Rwssell on Crimes, p. 84.
I should like to see some authoritative view

brought into this Senate to contradict that rule.
It is common law as well as common sense.

But, further, what use is there for raising a

answer has been made to it?

What answer

every other part of this discussion touching
the written laws of the land, I stand upon that
accepted canon of construction cited by the
Attorney General in his defense of the l’resi
dent last week, when he said “effect must be
given to every word of the written law.” Let
effect be given to the words that “every letter
of authority” shall be a high misdemeanor.
Let effect be given to the statute that every
commission issued and every order made affect.
ing or referring to the matter of the employ
ment in the office shall be a high misdemeanor.
Let the Senate pass upon it. I have nothing
further to say about it. I have discharged my
duty, my whole duty.

The question now remains, and the only
question that now remains, is this tenure-of
office act valid 2 If it is, whatever gentlemen
may say about the first article, there is no man
but knows that under the second and third and

eighth articles, by issuing the letter of author
ity in the very words of this statute, and in the
very light of his own letter, which I have read
just now in the hearing of the Senate, as to
his intent and purpose, he is guilty of a high
misdemeanor. No matter what may be said
about the first article, he did issue the letter of
authority which is set forth in the second
article, and he has written it down in his letter
of the 10th of February, that his object and
purpose was to violate that very law, and to

prevent the Secretary of War from resuming
the functions of the office, although the law
says he shall forthwith resume the functions
of the office in case the Senate shall non-concur

in his suspension.

And yet gentlemen haggle

here about this question as if it were an open
question. It is not an open question. It is a
settled, closed question at this hour in the
judgment of every enlightened, intelligent man
who has had access to your record in this
country, and it is useless and worse than use.
less to waste time upon it.
The question now is: is your act valid, is it
constitutional? Senators, I ought to consider

that question closed ; I ought to assume that
the Congress of the United States who passed
the act will abide by it. They acted upon the
responsibility of their oaths. They acted under

39
the limitations of the Constitution. The Thirty

contrary, a certain act entitled “An act to

Ninth Congress, not unmindful, I trust, of

regulate the tenure of certain civil offices,”
passed March 2, 1867

their obligations, and not incapable of duly
considering the grants and limitations of the

Constitution, passed this law because, first, they
deemed that it was authorized by the Constitu
tion, and because, second, they deemed that its
enactment was necessary—that is the word of

the Constitution itself—to the public welfare
and the public interest. They sent it, in
obedience to the requirements of the Consti

tution, to the President for his approval. The
President, in the exercise of his power and his
right under the Constitution, considered it and
returned it to the House in which it had origin
ated with his objections. When he had done
this we claim, and, in claiming it, we stand
upon the traditions of the courtry, that all his

ower over the question of the validity of this
i.
terminated. IIe returned it to the House
with his objections.
unconstitutional.

He suggested that it was

The Senate and the House

reconsidered it, in obedience to the Constitu.
tion, in the light of the President's objections,

and by a two-thirds vote under the obligation
of their oaths reënacted the bill into a law;
and, in the words of the Constitution, it there
by became a law, a law for the President, and
it will for ever remain a law until it is repealed
by the law-making power or reversed by the
courts having jurisdiction.
And now, what takes place? These gentle
men come before the Senate with their answer
and tell the Senate that it is unconstitutional.

They ask the Senate, in other words, to change
their record; ask to have this Journal read
hereafter at the opening of the court. “The

people of the United States against the Senate

When it comes to that, it is not for me to
say what becomes of the Senate. There is a

power to gibbet us all in eternal infamy for
making up records of this kind deliberately to
the injury of the rights of a whole people, and
to the dishonor and shame and disgrace of hu

man nature itself. And yet the question is
made here, and the truth is it had to be made,
it is in the answer, that the law is unconstitu
tional.

If the law be valid the President is

guilty, and there is no escape for him.

It is

needſul to make the issue, and having made
it, it is needful that the Senate decide it. If
they decide that the law is constitutional
there is the end of it. They have decided it
three times. They decided it when they first
passed the law. They decided it when they re
enacted it over the President's veto. They de
cided it again, as it was their duty to decide it,
when he sent his message to them on the 21st of
February, 1868, telling them that he had vio
lated and defied its provisions, that he had

disregarded their action; it was their duty to
decide it. The Senate need no apology, and
I am sure will never offer any apology to any
man in this life or to any set of men for what
they did on that occasion. What! The Pres

ident of the United States to deliberately vio
late the law of the United States, to disregard
the solemn action of the Senate, to treat with

contempt the notice that the Senate had served
upon him in accordance with the law, and send
a message to them, deliberately insulting them
in their own Chamber by telling them, in so
many words, “I have received your notice; I

disregard of the Constitution, in disregard of

know you have non-concurred in the suspen
sion of the Secretary of War; I was willing to
coöperate with you; and without regard to the

their oath of office, they did enact a certain

law, without the slightest evidence that the

law entitled ‘An act to regulate the tenure of
the American people, and were thereby guilty

Secretary of War was in any sense disqualified,
without the slightest evidence that he was guilty
of a misdemeanor or crime, as required by

of high crimes and misdemeanors in office.”

your statute, I suspended him, agreeing all the

Senators, we have had our lessons here upon
charity in the progress of this trial, but really

cast reproach and dishonor unjustly upon a

and House of Representatives, charged with
high crimes and misdemeanors in this, that in

certain civil offices' to the hurt and injury of

while, if you concurred with me, and thereby

it does seem to me that this would be a stretch

faithful officer and violated as well your own

of that charity which requires you to give away
your coat. I never knew before that it went
beyond your outer garments, your bread, the
money in your purse; but it seems you are to
make a voluntary surrender of your good name,
of your character, your conscience, in order

oaths and the law of your country, well and
good; I should stand with you ; we would
strike hands together.”

But, sirs, you have seen fit to have regard to

and say after all that it is not the President of

your oaths; you have seen fit to act in some
sense up to the character of that grand man
who illustrated the glory and dignity which
sometimes is vouchsafed to this poor human

the United States that is impeached, it is the

nature of ours when he was asked to violate

Senate that is sitting in judgment upon him ;
and now we will accommodate this poor un
fortunate by making a clean breast of it, and
making a confession before gods and men that
we violated our own oaths, that we violated the

the most holy law by eating forbidden food,
when he answered no. Well, seemingly do

to accomodate this accused and guilty culprit,

Constitution of the country, in that we did enact
into a law, despite the President's veto to the

it, for surely they will put you to death.

He

answered again, “No, for that would bring a
stain and dishonor upon my gray hairs; take
me to the torture; take me to the torture l''

The Senate, mindful of the obligations of their

40
oaths, careless of the influence of power and
position touching this question, when the mes.
sage of the President came to them that he

you, “Sir, the thing which you have done is

Government of the United States or in any
department or officer thereof.” I think that
grant of power is plain enough, and clear
enough to sanction the enactment of the tenure
of-office act, even admitting, if you please, that
the power of removal and appointment, subject
to the law of Congress, was conferred upon the
President, which I deny, there is a grant of

not warranted by the Constitution and laws of

power that the Congress may pass all laws

your country.”

necessary and proper to regulate every power
granted under this Constitution to every officer

had deliberately violated your law and defiantly

challenged you to make answer, did make
answer, as it was your duty under your oaths
and to that great people who commissioned

And this, Senators, is my answer to this

charge of hate in the prosecution of this im
peachment. The Representatives of the peo
ple, and all others who thought it worth while
to notice my own official conduct touching this
matter of impeachment, know well that I kept

thereof.

Is the President of the United States

myself back, and endeavored to keep others
back from rushing madly on to this conflict

between the people and their President. The
Senate, also acting in the same spirit, gave him

distinctly and clearly, that it is competent for
the Congress of the United States to regulate
this very question by law; and I add that the
Congresses of the United States, from the First

this notice that he might retrace his steps and
thereby save the institutions of the country the

Congress to this hour, have approved the same
thing by their legislation. That is all there is

“an officer thereof.” I do not stop, Senators,

to argue the proposition further,

§

refer to

an authority in 4 Webster's Works, 199, in
which he recognized the same principle, most

peril of this great shock. But no; it was need

of that question. The law, I take it, is valid

ful that he should illustrate the old Pagan rule,

enough, and will remain valid forever, if its
validity is to depend upon a judgment of re
versal by the Senate that twice passed it under
the solemn obligations of their oaths.
Something has been said here about a con

“Whom the gods would destroy they first
make mad.”

I return to the question of the validity of
this law, with the simple statement that by the
text of the Constitution, as I have already read
it in the hearing of the Senate, it is provided

that all appointments not otherwise provided

tinued practice of eighty years. I have said
enough on that subject, I think, to answer,
fully answer, all that was said by the learned

for in the Constitution shall be made by and

counsel for the President.

with the advice and consent of the Senate. It

the act of 1789, by the interpretation and con
struction of one of the first men of America,
Mr. Webster, did really by direct operation
separate the removing from the appointing

necessarily results, as Mr. Webster said, from
this provision that the removing power is in
cident to the appointing power unless other
wise provided by law.
have shown to the
Senate that this removing power has never

I have shown that

power and was itself a grant of power. I have

been otherwise exercised, from the First Con

said already, and have shown to the Senate,
that the Constitution confers that power upon

gress to this hour, except in obedience to the
express provisions of law; that the act of

the Senate. Then there is no practice of
eighty years adverse to this tenure-of-office

1789 authorized the removal, that the act of

1795 authorized the temporary appointment.

act; so that I need say no further word on
that subject, but leave it there.

I add further that I have argued in the presence
of the Senate the effect of that provision of the

witness of one thing, and that is that the Con

Constitution that the President shall have

power to fill up all vacancies which may happen
during the recess of the Senate by granting
commissions which shall expire at the end of
their next session, which by necessary impli
cation means, and means nothing else, that
he shall not create vacancies, without the
authority of law, during the session of the Sen

ate, and fill them at his pleasure without the
consent of the Senate.

I have but one word further to add in support
of the constitutionality of this law, and #. is

the express grant of the Constitution itself that
the Congress shall have power “to make all
laws which shall be necessary and proper,”

interpreting that word “proper” in the language
of Marshall himself, in the great case of McCul:
loch vs. Maryland, as being “adapted to,”

“shall have power to make all laws necessary
and adapted to carrying into execution” “all”
the “powers vested by this Constitution in the

All the acts from 1789 down to 1867 bear

gress of the United States have full power
under the Constitution by law to confer upon
the President the power of temporary or per
manent removal or withhold it. That is pre
cisely what they establish, and I stand upon it

here as a Representative of the people, prose
cuting for the people these articles of impeach
ment, and declare here, this day, upon my
conscience, and risk what reputation I may
have in this world upon the assertion that the
whole legislation of this country from 1789 to
1867 together, bears one common testimony to
the power of the Congress to regulate by law

the removal and appointment of all officers
within the general limitation of the Constitu
tion of the supervisory power of the Senate.
Why, the act of 1789, as Webster said, con

ferred upon the President the power of removal
and thereby separated it from the power of
appointment of which it was a necessary inci

dent and subjected this country to great abuses.

41
The act of 1795, on the other hand, gave him

referred, that it was simply impossible for him

ments, limited, however, to six months for any

to test the question in i. courts in the form
in which he himself put the question, there is

one vacancy, thereby showing that it was no

an end of it. There is no use in pressing the

ower under the Constitution and beyond the

matter any further, and I dismiss it with this
additional remark, that he had no right, no
colorable right, to challenge in that way the
laws of a free people and suspend their execu
tion until it should suit his pleasure to test
their validity in the courts of justice.

power to make certain temporary appoint

imitations and the restrictions of law.
The act of 1863 limited and restricted him

to certain heads of Departments and other
officials of the Government, as did also the act
of 1789.

If the President of the United States

has this power by force of the Constitution,

But, Senators, what more is there? He is

independent of law, pray tell me, Senators,

charged here with conspiracy, and conspiracy
is proved upon him by his letter of authority to
Thomas and Thomas's acceptance under his
own hand, both of which papers are before the
Senate and in evidence. What is a conspiracy?
A simple agreement between two or more per
sons to do an unlawful act, either with or with
out force, and the offense is complete the
moment the agreement is entered into. That
is to say, the moment the mind of each assents
to the guilty proposition to do an unlawful act,

how it comes that the act of 1789 limited and
restricted him to the chief clerk of that De
how it comes that the act of 1795

#.

imited and restricted him to the period of six
months only, for any one vacancy? If, as is
claimed in this answer, he had the power of
indefinite removal and therefore the power of
indefinite appointment, how comes it that the
act of 1863 limited him to certain officials of
the Government and did not leave him at lib

erty to choose from the body of the people. I
waste no further words on the subject. I con
sider the question fully closed and settled. All
the legislation shows the power of the Presi
dent to be subject to the limitations of the
Constitution and subject to the further limita
tion of such enactments as the Congress may
make, which enactments must bind him, as

conspiracy is complete, and the parties are
then and there guilty of a misdemeanor. It is
a misdemeanor at the common law; it is
a misdemeanor under the act of 1801; it is a
misdemeanor under the act of 1831. It is a
misdemeanor for which Andrew Johnson and
Lorenzo Thomas are both indictable after this

proceeding shall have closed; and it is a mis

they bind everybody else, whether he approves

demeanor an indictment for which would be

them or not, until they shall have been duly
reversed by the courts of the United States or

worth no more than the paper upon which it
would be written until after this impeachment

repealed by the people's Representatives in

shall have closed and the Senate shall have

Congress assembled.

pronounced the righteous judgment of guilty
upon this offender of your laws, and for a very
simple reason.
Senators, it is written in your Constitution
that the President shall have power to grant
reprieves and pardons for all—not some, but
all—offenses against the United States save in

I may be pardoned, Senators, having gone
over hastily in this way the general facts in
this case, for saying that the President's decla
rations are here interposed to shield him from
his manifest guilt under the first three, the
eighth, and the eleventh articles in this matter
of removal and appointment during the session
of the Senate. These declarations of the Pres
ident are declarations after the fact. Most of

them were excluded by the Senate, and most
properly, in my judgment, excluded by the
Senate.

Some of them were admitted.

cases of impeachment. Indict Lorenzo Thomas
to-morrow for his misdemeanor in that he con

spired with Andrew Johnson to violate the law
of the United States, in that he conspired with

him to prevent, contrary to the “act to regu

I do

late the tenure of certain civil offices,” Edwin

not regret it. It shows that the Senate were
willing even to resolve a doubtful question, or,
if it were not a doubtful question, to relax the

tions of his office upon the refusal of the Sen

rules of evidence in the exercise of their dis

cretion, to see what explanation the Chief
Executive could possibly give for his con
duct, and allow him, contrary to all the rules
of evidence, to be a witness in his own case,
and that, too, not under the obligations of an
oath. They introduced his declarations. They
amount to no more than that to which I have

referred already, that it was his purpose in
violating the law to really test its validity in

the courts, whenever, of course, he got ready
to test it.

That is all there was of them.

M. Stanton from forthwith resuming the func
ate to concur in his suspension; and all that
is wanting is for Andrew Johnson, with a mere
wave of his hand, to issue a general pardon

and dismiss the proceeding. I say again this
is the tribunal of the people in which to try

this great offender, this violator of oaths, of
the Constitution, and of the laws.
Say the gentlemen, that is a very little offense;

you might forgive that. The pardoning power
does not happen to be conferred upon the
Senate, and this tender and tearful appeal to
the Senate on the ground of its being a little
thing does not amount to very much. But, say

There was nothing more of the declarations of
the President as introduced by him in this

the gentlemen, you have also charged him,

trial. If that can be any possible excuse in

with Lorenzo Thomas, in the one count by force,
in the other by threat and intimidation, to work

the light of the fact to which I have before

under the act of 1861, with having conspired

42
out the same result, to prevent the execution
of the laws and to violate their provisions. So

we have, and we say that he is clearly proved
guilty. How? By the confession chiefly of
his coconspirator. I have said the conspiracy

“Question. And before you issued that order, took
that away to get hold of the mails or papers, you
thought it necessary to consult the President?

''Answer. I gave that to him for his consideration.

.#: You

did think it necessary to consult

the President, did you not? . .
“Answer. I had consulted him before.”

is established by the written letter of authority

and by the written acceptance of that letter of

Further on he says:

authority by Thomas. The conspiracy is es
tablished, and the conspiracy being established,

“Question. They were published and notorious,

I say that the declarations of his coconspirator,
made in the prosecution of the common design,
are evidence against them both. And in sup:
port of that I refer the Senate to the case of
the United States vs. Cole, 5 McLane's United
States Circuit Court Reports:
“Where prima facie evidence has been given of a
combination the acts or confessions of one are evi

dence against all.”

,”

“It is reason

able that where a body of men assume the attribute
of individuality, whether for commercial business or

for the commission of a crime, that the association
should be bound by the acts of one of its members
in garrying out the design.”

You have the testimony of the declaration of

this coconspirator.

He was conversing with

were they not? Have you acted as Secretary of War
ad interim since 2
“Answer. I have given no order whatever.

“(Juestion. That may not be all the action of a
Secretary of War ad interim. Have you acted as
Secretary of War ad interim *
“Answer. I have, in other respects.

'' Question. What other respects?
“Answer. I have attended the councils.

..?...!!!"
Cabinet meetings, you mean.
“Answer. Cabinet meetings.
-4

uestion. Ilave you been recognized as Secretary
of War ad interian *

...Answer. I have been.

..º.º.

Continually 2
“Answer. Continually.

“Question. By the President and the other mem
bers of the Cabinet?
“Answer. Yes, sir.

...!!!".
Down to the present hour?
nswer. Down to the present hour.

friends; and it is for the Senate to determine

, “Question. All your action as Secretary of War ad

whether he was not invoking the aid of friends

interim has been confined, has it uot, to attending
Cabinet meetings?
-

in the prosecution of this common design. He

“Answer. It has. I have given no order whatever,

told one friend that in two or three days he
would kick the Secretary of War out; he told
that other friend, Dr. BURLEIGH, who visited his

.." Question, Have you given any advice to the Pres
ident? You being one of his constitutional advisers,

house, to come up on to-morrow morning, “and
if the doors are closed I will break them down.”

have you given him advice as to the duties of his
office or the duties of yours?
“Answer. The ordinary conversation that takes
place at meetings of that kind. I do not know that

I gaye him any particular advice.

It was inviting a friend of his own to be there,
in case of need, to render him assistance and

..?..."

Did he ever call you in 2

“Ainswer. He has asked me if I had any business

coöperation. There is something further, how

to lay before him several times.

ever, in this evidence of the purpose to employ

nswer. I never had any except the case of the
note I proposed sending to General Grant.
“Question. I want to inquire a little further about
that. He did not agree to send that notice, did he?
“Answer. When I first spoke to him about it I told

force. In the examination (page 440 Impeach:
ment Record) of this coconspirator he is asked

in regard to the papers of the Department:
“Did you afterward hit upon a scheme by which
you might get possession of the papers without get
ting possession of the building 7
“Answer. Yes, sir.

-

“Question. And that was by getting an order of
General Grant?
“Answer. Yes—
“Mr. EwARTs. He has not stated what it was.
“By Mr. Manager BUTLER :
-

“Question. Did you write such an order?
“Answer. I wrote the draft of a letter; yes, and

gave it to the President.

.

gested 2

“Answer. The other mode would be to require the
mails to be delivered from the city post office.
And he told you to draw the order?
“Answer. No ; he did not.

..º.º.

-

-

“Answer. For his consideration.

“Question...When was that?
“Answer. The letter is dated the 10th of March.”

After he was impeached, defying the power
of the people to check him, he left the letter
with the President for his consideration.
“Question. That was the morning after you told

Karşner you were going to kick him out
... Answer. That was the morning after.
“Question. And you carried that letter 2
“Answer. I had spoken to the President before
about that matter.

of War. ...That was one mode.
“Question. What was the other mode you sug

“Answer. I did it of myself, after having this talk.

.

“Question. And left it with the President for
I
-

him what the mode of getting possession of the
papers was, to write a note to General Grant to issue
an order calling upon the heads of bureaus, as they
were military men, to send to me communications
designed either for the President or the Secretary

‘‘ Question. But you did 7

“Question. Did you sign it?

Answer. I signed it. .

“Question. You never had any ?

-

“Question. You did not think any bloodshed would
come of that letter?
“Answer. None at all.

“Question. Did he agree to that suggestion of
yours ?

-

“Answer. He said he would take it and put it on
his own desk, He would think about it.
“Question. When was that?

nswer. On the 10th. . .
“Question. Has it been lying there ever since, as far
as you know?
“Answer. It has heen.

“Question. He has been considering ever since on
that subject?

... Answer. I do not know what he has been doing.
“Question. Has he ever spoken to you or you to him
about that order since 2
“A nancer. Yes.
“Question. When 2

-

nºwer. I may have mentioned it one day at the
council, and he said we had better let the matter rest
until after the impeachment.”

“Question. And the letter was to be issued as your
order?
“Answer. Yes.

A notice to the Senate that these two con

federates and conspirators have been delib.

43
erately conferring together about violating,
not simply your tenure-of-office act, but your
act making appropriations for the Army of 2d

give their attention. Mr. Manager BINGHAM
will resume the argumentin behalf of the House

of Representatives.

of March, 1867; that one of the conspirators
Mr. Manager BINGHAM.

Mr. President

has written out an order for the very purpose
ef violating the law, and the other conspirator,

and Senators, yesterday I had said nearly all

seeing the handwriting upon the wali, and

that I desired to say touching the question of
the power of the President under the legisla

apprehensive, after all, that the people may
pronounce him guilty, concludes to whisper in
the ear of his coconspirator, “Let it rest until
after the impeachment.” Give him, Senators,
a letter of authority, and he is ready, then, to
renew this contest and again sit in judicial
judgment upon all your statutes, and say that
he has deliberately settled down in the convic
tion that your law regulating the Army, fixing

tion of the United States to control the exec
utive offices of this Government. To the better

understanding, however, of my argument, Sen
ators, I desire to read the provisions of the

several statutes and to insist in the presence of
the Senate that upon the law, as read by the
counsel for the President on this trial, the acts
of 1789 and of 1795 have ceased to be law, and

the headquarters of its General in the capital,

that the President can no more exercise author

not removable without the consent of the Sen

ity under them to-day than can the humblest

ate, does nevertheless impair, in the language
of that argument made by Judge Curtis, cer.
tain rights conferred upon him by the Consti
tution, and by his profound judicial judgment
he will come to the conclusion to set that aside,
too, and order General Grant to California or

to Oregon or to Maine, and defy you again to
try him. Senators, I trust you will spare the
people any such exhibition.
And now, Senators, it has been my endeavor
to finish all that I desire to say in this matter.

I hope, I know really, that I could finish all
that I have to say, if I were in possession of

citizen of the land.

I desire also, Senators,

in reading these statutes, to reaffirm the posi
tion which I assumed yesterday with perfect

confidence that it would command the judgment
and assent of every Senator, to wit: that the
whole legislation of this country from the first
Congress in 1789 to this hour bears a uniform
witness to the fact that the President of the
United States has no control over the exec

utive officers of this Government, except such
control as is given by the text of the Constitu

tion which I read yesterday, to fill up such va
cancies as may occur during the recess of the

my strength, in the course of an hour or an

Senate with limited commissions to expire with

hour and a half... It is now, however, past
four o'clock, and if the Senate should be good
enough to indulge me I shall promise not to
ask a recess to-morrow if it pleases Providence

their next session, or such power as is given to
him by express authority of law. I care noth
ing for the conflicting speeches of Representa

to bring me here to answer further in the case
of the people against Andrew Johnson.

statutes of the country conclude them and con
clude us, and conclude as well every officer of

Mr. HOWARD. I move that the Senate,
sitting for the trial of the impeachment,

adjourn until to-morrow at twelve o'clock.
The motion was agreed to; and the Sen
ate, sitting for the trial of the impeachment,
adjourned.

WEDNESDAY, May 6, 1868.
The Chief Justice of the United States took
the chair.

The usual proclamation having been made
by the Sergeant-at-Arms,

The Managers of the impeachment on the
of the House of Representatives, and
essrs. Evarts, Groesbeck, and Nelson, of
counsel for the respondent, appeared and took
the seats assigned to them respectively.
The members of the House of Representa
tives, as in Committee of the Whole, preceded

W.

by Mr. E. B. WASHBURNE, chairman of that

committee, and accompanied by the Speaker
and Clerk, appeared and were conducted to the
seats provided for them.

tives in the First Congress on this question. The
this Government from the Executive down.

What, then, Senators, is the provision of

this act of 1789? I may be allowed, in pass
ing, to remark—for I shall only read one of
them—that the act establishing the Depart
ment for Foreign Affairs contains precisely
the same provision, word for word, as the act
of the same session establishing the Depart
ment of War. The provision of the act of 1789
is this:

“SEC. 2. That there shall be in the said Depart
ment an inferior officer, to be appointed by the said
principal officer, and to be employed therein as he
shall deem proper, and to be called the chief clerk

of the Department of Foreign Affairs, and who, when
ever the said principal officer shall be removed from
office by the President of the United States”—

Which I showed you yesterday, upon the
authority of Webster, was a grant of power
without which the President could not have
removed him—
“or in any other case of vacancy, shall, during such
yacancy, have the charge and custody of all records,
books, and papers appertaining to the said Depart
ment.”

Standing upon that statute, Senators, and

The Journal of yesterday's proceedings of
the Senate, sitting for the trial of the impeach

practice of eighty years, I want to know, as I

ment, was read.

inquired yesterday, what practice shows that

The CHIEF JUSTICE. Senators will please

standing upon the continued and unbroken

this vacancy thus created by authority of the

44
act of 1789 could be filled during the session
of the Senate by the appointment of a new
head to that Department without the consent
of the Senate as prescribed in the Constitu
tion. . No precedent whatever has been fur

It was a grant of power to him. No grant
of power could be more plainly written. What
is the necessity of this grant if the defense
made here by the President as stated in his
answer and read by me to the Senate yester

nished.

day be true—that the power is in him by virtue

I said yesterday all that I have occasion to
say touching the case of Pickering. I re
marked yesterday, what I but repeat in pass
ing, without delaying the Senate, that the va
cancy was not filled without the consent of the
Senate, and that is the end of this unbroken
current of decisions upon which the gentlemen
part of the accused President. It cannot avail

of the Constitution? If it be, I ask to-day, as
I asked yesterday, how comes it that Congress
restricted this constitutional power to appoint
ments not to exceed six months for any one
vacancy? That is the language of the statute.
Am I to argue with Senators that this term
“any one vacancy'” excludes the conclusion
that the President could, upon his own motion,
multiply vacancies ad infinitum by creating

them. The act of 1789 excludes the conclusion

another at the end of the six months and mak

which they have attempted to impress upon the

ing a new appointment? Senators, there is
no unbroken current of decisions to support
any such assumption.
There is no action of the executive depart
ment at any time to support it or give color to
it, and there I leave it.

rely to sustain this assumption of power on the

minds of the Senate in defense of the Presi
dent. The law restricts him to the chief clerk.

-

If he had the power to fill the vacancy, why
this restriction?

Could he override that law?

Could he commit the custody of the papers
and records of that Department, on the act of
1789, to any human being on earth during that
vacancy but the chief clerk, who was not ap
pointed by him, but by the head of the Depart
ment? There stands the law, and in the light
of that law the defense made by the President
turns to dust and ashes in the presence of the

Senate. I say no more upon that point, remind
ing the Senate that the act of 1789 establish

ing the War Department contains precisely
the same provision and imposes precisely the
same limitation, giving him no power to fill
the vacancy by appointment during the session
of the Senate.

I pass now to the act of 1795. The act of
1792 is obsolete, has been superseded, and was
substantially the same as the act of 1795; and
what I have to say, therefore, of the act of
1795, applies as well to the act of 1792. I
read from 1 Statutes-at-Large, page 415:
“In case of vacancy in the office of Secretary of
State, Secretary of the Treasury, or of the Secretary
of the Department of War, or of any officer of either
of the said Departments whose appointment is not in

the head thereof, whereby they cannot perform the
duties of their said respective offices, it shall be law
ful for the President of the United States, in case he
shall think it necessary, to authorize any person or

persons, at his discretion, to perform the duties of the
said respective offices until a successor be appointed
or such vacancy be filled: Provided, That no one

yacancy shall be supplied in manner aforesaid for a
longer term than six months.”

There stood the act of 1789, unrepealed up
to this time, I admit, expressly authorizing the
President to create the vacancy, but restricting
him as to the control of the Department after
it was created to the chief clerk of the De

partment. That is superseded by the act of
1795, in so far as the appointment is concerned,
by expressly providing and giving him the
additional power:
“It shall be lawful for the President of the United

States, in case he shall think it necessary, to author
ize any person or persons, at his discretion, to per
form the duties of the said respective offices until a
successor be appointed.”

I ask the attention of Senators now to the

provisions of the act of 1863, which also affirms
the absolute control of the legislative depart
ments over this whole question of removal and

appointments, save and except always the ex

press provision of the Constitution—which, of

course, the Legislature cannot take away—that
the President may fill up vacancies which may
happen during the recess of the Senate by
limited commissions to expire at the end of
their next session.
words:

The act of 1863 is in these

“That in case of the death, resignation, absence
from the seat of Government, or sickness of the head
of any executive Department of the Government, or
of any officer of either of the said Departments whose
appointment is not in the head thereof, whereby they
cannot perform the duties of their respective offices,
it shall be lawful for the President of the United
States, in case he shall think it necessary, to author
ize the head of any other executive Department or
other officer in either of said Departments whose
appointment is vested in the President, at his dis
cretion, to perform the duties of the said respective

offices until a successor be appointed or until such
absence or inability by sickness shall cease: Pro
vided, That no vacancy shall be supplied in manner
aforesaid for a longer term than six months.”

Senators, what man can read that statute

without being forced to the conclusion that the
Legislature thereby reaffirmed the power that
they affirmed in 1789, the power that they
affirmed in 1795, to control an
by law

º

this asserted unlimited power of the Execu
tive over either appointments or removals.
Look at the statute. Is he permitted to choose

at large from the body of the community to fill
temporarily these vacancies? Not at all.
“It shall be lawful for the President of the United
States, in case he shall think it necessary, to author

ize the head of any other eacecutive Department, or other
officer of either of said Departments whose appointment
is vested in the President”

that is, the inferior officers—
“at his discretion, to perform the duties of the said
respective offices until a successor be appointed.”

He is restricted by the very terms of the

statute to the heads of Departments or to such

45
inferior officers of the several Departments as

sioned under such appointment.

are by law subject to his own appointment, and

officials shall hold these offices. What becomes

by that act he can appoint no other human
being. There is the law; and yet gentlemen
stand here and say that the act of 1789 and the
act of 1795 were not repealed, when they read
the authority themselves to show that when two
statutes are repugnant and irreconcilable the
last must control and works the repeal of the
first. Here is the President by this act re

of this grant of power in the act of 1789 to the

stricted expressly to the heads of Departments

They all go by the board. There stands the

and to the inferior officers of Departments
subject to his appointment under law, and he
shall appoint no one else. Was that the pro

away from, concluding this whole question:

vision of 1795?

*

Do these statutes stand to

President to remove?

able.

For the purpose of my argument it is

not needful that I should insist upon the repeal
of the act of 1795 any further than it relates
to the vacancies which arise from the cases
enumerated in the act of 1863. The act of

What becomes of this

grant of power in the act of 1795 to make tem
porary appointments for six months? What
becomes of the provision of the act of 1863
which authorized him to fill these vacancies

with the heads of Departments or by inferior
officers for a period not exceeding six months?
provision of the statute which no man can get
“That every person holding any civil office,”
"
*
*
“ by and with the advice and consent

of the Senate,”

gether? Are they by any possibility reconcil

All present

*

*

*

*

“shall be en

titled to hold such office until a successor shall have
been in like manner appointed and duly qualified.”

Nothing could be plainer. There is no room
for any controversy about it. There is not an
intelligent man in America that will challenge
it for a moment. “Every person holding”

1863 is a reassertion of the power of the Legis
lature to control this whole question; and that

the office must include all persons holding the

is the unbroken current of decisions from the

statute says—until a successor shall, in like
manner, that is to say, by and with the advice

First Congress down to this day, that the Presi
dent can exercise no control over this question
except by authority of law and subject to the
express requirements of law.
This brings me then, Senators, to the act of

office.

He shall continue to hold it—so the

and consent of the Senate, be not only ap

pointed, but duly qualified. What room is
there here, Senators, for any further contro

1867, to which I referred yesterday, and which

versy in this matter? None whatever.
I referred yesterday to the proviso. I asked

I refer to now to-day in this connection for the

the attention of Senators yesterday to the fact

urpose of completing this argument and leav
ing every man without excuse upon this ques
tion as to the limitations imposed by law upon
the President of the United States, touching

that the elaborate argument of Mr. Curtis on

this matter of appointment and removal of the

heads of Departments, and of all other officers
whose appointment is, under the Constitution,
by and with the advice and consent of the Sen

ate ; and my chief object in referring again
this morning to the act of 1867 is to show to
the Senate, what I am sure must have occurred

to them already, rather to perfect my own argu
ment than to suggest any new thought to them,
that by every rule of interpretation, that by
every letter and word of law read in the con

duct of this argument on behalf of the Presi
dent by his counsel, the act of 1867, by neces
sary implication, beyond the shadow of a doubt
repeals the acts of 1789 and of 1795 and leaves
the President of the United States subject to
the requirements of this law as to all that class

of officials. The language of this law is:
"That every person holding any civil office to
which he has been appointed by and with the advice
and consent of the Senate’’

That is, all past appointments at the time
of the passage of this law—
“and every person who shall hereafter be appointed
to any such office, and shall become duly qualified
to act therein, is, and shall be, entitled to hold such
office until a successor shall have been in like man

ner appointed and duly qualified, except as herein
otherwise provided.”

How, appointed 2

“In like manner ap

pointed" by and with the advice and consent
of the Senate, and duly qualified and commis

behalf of the accused declares in words, as you
will find it recorded in the report of the case,

that the present heads of Departments ap
pointed by Mr. Lincoln are not by any express
words whatever within the proviso. He not
only made the statement in manner and form
as I now reiterate it in the hearing of the Sen
ate, but he proceeded to argue to the Senate
to show that they were not even by implica
tion within the proviso.

And so his argu

ment stands reported to this hour; and, so far
as I observed, really uncontradicted by any
thing said afterward by any of his associates;
but if they did contradict it, if they did depart
from it, if they did differ with him in judgment
about it, they are entitled to the benefit of the
difference. I do not desire to deny them the
benefit of it. I only wish to say that it cannot
avail them. I only wish to say in the hearing

of Senators that the interpretation put upon
that proviso by the opening counsel for the
President, declaring that it did not extend to

nor embrace the existing appointments of the
heads of Departments under Mr. Lincoln, is
an admission that Mr. Stanton was entitled to

hold his office until removed by and with the
advice and consent of the Senate.

The reason

given by Mr. Curtis was that there are no ex
press words embracing the heads of Depart
ments appointed by Mr. Lincoln. The further
reason given by Mr. Curtis was that there is
nothing which by necessary implication brings
them within the operation of the proviso.

If

they be not within the operation of the pro

46
The counsel who

charge the powers and duties of the said office, the
same shall devolve on the Vice President; and the
Congress may by law provide for the case of removal,

viso, they are, by the very words of the statute,
within the body of the act.

followed him for the President admitted that

death, resignation, or inability, both of the Presi

the offices were within the body of the act.

dent and Vice President, declaring what officer shall

The persons holding the offices, by the very
words of the act “every person,” are within
the body of the act, and they are to retain the
office, unless suspended for the special reasons

cordingly, until the disability be removed or a Presi

named in the second section, by the express

terms of the act, until a successor shall be, in
like manner, appointed by and with the advice

then act as President, and such officer shall act ac
dent shall be elected.”

In the light of these provisions of the Con
stitution, and of this provision of the act of
1792, is it not apparent to the mind of every
man within the hearing of my voice that the

presidential term named and referred to in the

and consent of the Senate and shall have been

act of 1807 is the constitutional term of four

duly qualified.

years? It must be so. . It must be the term

But I return to the proviso. The proviso is:
“Provided, That the Secretaries of State, of the

authorized by the Constitution and the laws,
for there is no other “term.” The position

Treasury, of War, of the Navy, and of the Interior,
the Postmaster General, and the Attorney General,

assumed here is that Andrew Johnson has a

shall hold their offices respectively for and during the

term answering to the provisions of the Con

term of the President by whom they may have been
appointed, and for one month thereafter, subject to

stitution, of the act of 1792 and of the act of
1867, both of which employ the same word—
the term of four years under the Constitution.

removal by and with the advice and consent of the
Senate.”

-

This proviso manifestly, in the last clause
of it, stands with the general provisions of the

Apply this provision of the Constitution which

first clause of the section which I have read, that
they are at any time subject to removal by and

ability of the President of the United States to

with the advice and consent of the Senate. The

I have just read, that in the event of the in
execute the duties of the office the Vice Pres
ident shall execute the duties of the office until

office of the heads of these several Departments

such disability be removed. That is the lan
guage of the Constitution. If the President

appointed by and with the advice and consent

of the United States elected by the people, and

of the Senate, by this limitation, that one month
after the expiration of the term of the Presi
dent by whom they were appointed, their office
shall expire by mere operation of law, without
the intervention of the Senate, without the in
tervention of the President, without the inter
vention of anybody. It was said here, very

therefore possessed of a constitutional term,
and the only person who ever can have a con

residue of the proviso is to limit the tenure of

properly, by the Attorney General, that effect
must be given to every word in a written

statute. It is the law.

Effect must be given

to it, and such an effect as will carry out the
intent of the law itself. Give effect, Senators,
if you please, to the words “during the term

É.

stitutional term while the Constitution remains

as it is, shall be overtaken with sickness, and
by delirium, if you please, rendered utterly
incapable, in the language of the Constitution,
of discharging the duties of the office, and his
inability continues for the period of four con
secutive months, is the Senate to be told that
the Vice President, upon whom the duties of

the office by this provision devolve, by reason
of the construction imposed here upon this

statute or attempted to be put upon it by the

It is the

counsel, is to be said to have a term within
the meaning of this law, and therefore by oper
ation of the statute, within one month after
the disability arose against the President by
reason of his delirium, every executive office
by operation of law became vacant; and are

only presidential term known to the Constitu

you to follow it to the absurd and ridiculous

tion. The act of March 1, 1792, reaffirms the
same principle by law. I read from 1 Statutes
at-Large, page 241:

conclusion when, in the language of the Con
stitution, the disability shall be removed and
the President restored to office, the offices

“That the term of four years, for which a President
and Vice President shall be elected, shall in all cases
commence on the 4th day of March next succeeding

ate by the Vice President, upon whom the

of the
and for one month thereafter.”
Give effect to the words “the term of the

President,” if you please. The Constitution
employs this phrase “term of the President.”
It declares that the President shall hold his

office during the term of four years.

the day on which the votes of the electors shall have
been given.”

After making provision for an election in
certain contingencies when a vacancy shall
have arisen in the office both of President

and Vice President of the United States, the
statute follows it up with the same words that
the term shall commence on the 4th of March

next after the election or the counting of the
votes. The provision of the Constitution
throws some light upon the subject:
“In case of the removal of the President from of.
fice, or of his death, resignation, or inability to dis

filled with the advice and consent of the Sen

office in the meantime devolved—for by the

terms of the Constitution your President dis
abled was civilly dead; you had but the one
President, and that was the Vice President,
during the four months—on account of vacan
cies arising by operation of law one month

after the office was devolved upon him by the
Constitution by reason of the inability of the
President, are to become vacant one month

after the expiration of this four months' term
and the return of the disabled President to his

office by reason, in the language of the Consti
tution, of the removal of his disability.

47
It will not do.

He had no term.

No effect

is given to the words of your statutes in that
way; and more than that, Senators, these
learned and astute counsel knew right well that

Thirty-Ninth Congress. I venture to say that
no utterance of that sort is found recorded upon
the debates touching this reform in the legisla
tion of the country and controlling executive

they changed in their own minds, and changed

appointments. What right had Mr. Lincoln to

by the words of their own argument, the very
language of the statute, so that it should have

complain that the law did not vacate the heads
of Departments by its own operation for his

read to accomplish their purposes: “that the

benefit when he had filled them himself? The

office shall expire within one month after the
end of the term in which they may have been
appointed,” not “in one month after the end

law was passed for no such purpose.

of the term of the President by whom appointed,”
as the statute does read; but their logic rests
upon the assumption that the statute contains
words which it does not contain, “that their
office shall expire within one month after the

I read

the law literally as it is. They were to hold
their offices, in the light of the reason of the

law, during the entire term, if it should be eight
years or twelve years or sixteen years, of the
President by whom they were appointed, and
their office was to expire within one month

after the expiration of the term of the Presi

term in which they may have been appointed.”
Concede that, change the law in that way in

dent by whom they were appointed, not within
one month after the expiration of the term in

order to accommodate this guilty man, and I

which they were appointed.
That is my position in regard to this ques

will admit that you arrive at this conclusion,
and that is as about absurd as the other, giv
ing their construction to the law, changing its
language from what it is, “that the office shall
expire in one month after the term of the Presi
dent by whom appointed,” so that it shall read
“after the end of one month from the end of

the term in which they were appointed,” and
it results that ever since the 4th day of April,
1865, the people of the United States have been

tion. I have no doubt about its being the true
construction of the law, neither had the ac
cused; and I stated to the Senate yesterday my
reasons for the assertion; I do not propose to

repeat them to-day. The Senate did me the
honor to listen and attend to my remarks on
that subject, wherein the President, by every

step he took until this impeachment was insti
tuted, confessed that that was the operation of

without a constitutional or lawful Secretary of this law, and these heads of Departments might
State, without a constitutional Secretary of the avail themselves of it.
In the act of 1792 my attention is called to
Treasury, without a constitutional Secretary of
the Navy, and without a constitutional Secre another provision of it, which I did not read,
tary of War, because accepting the assumptions which shows the operation of this word “term”
of these gentlemen, that by this word “term” still more strongly than does the provision of
in the statute is meant the term in which they the twelfth section, which I did read. It is
were appointed and not the term of the Presi

found in the tenth section of the act, which

dent by whom they were appointed, admit provides—
their premises, and no mortal man can escape
“That whenever the offices of President
the conclusion that the offices all became vacant

on the 4th day of April, 1865. That is the posi
tion assumed by these gentlemen for the simple
reason that these four Secretaries were every
one of them appointed by Mr. Lincoln in his
first term, which first term expired on the 4th
day of March, 1865.

Senators, that is not the meaning of your
law.

“The reason of the law is the life of the

law.” The reason of the law was simply this:
that the Presidents elected by the people for a
term—and no other Presidents have a term—

and Vice
President shall both become vacant the Secretary of
State shall forth with cause a motification thereof to
be made to the Executive of every State, and shall

also cause the same to be published in at least one
of the newspapers printed in each State, specifying
that electors of the President of the United States
shall be
chosen in the several States

ºº::

within thirty-four days preceding the first Wednes
day in December then next ensuing: Provided, There
shall be the space of two months between the date
of such notification and the said first Wednesday in
December; but if there shall not be the space of two
months between the date of such notification and the
first Wednesday in December. and if the term for
which the President and Vice President last in office

were elected shall not expire on the 3d day of March

should, by operation of law, upon their coming

next ensuing, then the Secretary of State shall spe

to the office, be relieved, without any interven:

cify in the notification that the electors shall be ap
pointed or chosen within thirty-four days preceding

tion of theirs, of all the several heads of De

the first Wednesday in December in the year next

partments who had been appointed by their
predecessors. That is the meaning of the law.

ensuing, within which time the electors shall accord
ingly be appointed or chosen.”

That is all there is of it. So far as this ques
Showing that this term by the express pro
tion of the right of an incoming President to a visions of the law is limited everywhere and
new Cabinet is concerned, that is the extent
of it. The word “term "determines it. Did
that mean that a President reëſected for a term

intended to be limited everywhere within the
meaning and sense of the Constitution. That

being so there is no person who has a term but
and thereby continuing in the office should be the President elected by the people. There is
relieved from his own appointees by operation no person, therefore, whose appointments can,
of law, and that, too, without his consent, and, by any possibility, be within the provisions of
if you please, against his wish? It never en. this proviso but such a President, and in that
tered into the mind of a single member of the case the Secretary of War and the other Secre

48
taries of the various Departments are under

the operation of the statute within the proviso,
so as to limit and determine their offices at the

expiration of one month after the inauguration
of a successor elected also to a term.

It is the

only construction which gives effect to all the
words of the statute.

It must be a successor,

not a reëlection of the same President.

There is one other point in this matter, and
I have done with it. The gentlemen give this

proviso a retroactive operation in order to get
along with their case, and, as I showed to the
Senate, vacate the offices really by making the
statute read as it does not read, that these
officers are to go out of office one month after

the expiration of that term, and that term never
does expire until the end of the time limited.
I have nothing further to say, Senators, upon
this point. I think I have made it plain enough.
Having said this, allow me to remark in this
connection that I think my honorable and
learned friend from Ohio, [Mr. Groesbeck,]
in his argument, spoke a little hastily and a
little inconsiderately when he ventured to tell
the Senate that unless Mr. Stanton was pro
tected by the tenure-of-office act the first eight
articles of impeachment must fail. Passing

the question of removal, about which I have
said enough, and more than enough, how can
anybody agree with the honorable gentleman
in his conclusion touching this matter of ap

the expiration of the term in which they were
appointed. In order to get up this construction pointment? What man can say one word, one
they give a retrospective operation to the act, intelligible word in justification of the position
and make it take effect two years before its
assage, and make it vacate the four Executive
I have named on the 4th day of
April, 1865, when in point of fact the act was
not passed until the 2d day of March, 1867. I
have just this to remark on that subject, that

that the act of 1867 did not sweep away every
line and letter of the power of appointment
conferred on the President by the acts of 1789
and 1795, as to every officer, appointable by

it is a settled rule of the law that a retrospect

and beg pardon for asking their attention again

ive operation can be given to no statute what

ever without express words. The counsel for

to the express words of the act which settle
beyond controversy that point. Those words

the President admits there are no express

are :

É.

and with the advice and consent of the Senate?

I have asked the attention of the Senate before,

words in the proviso. That is the language
of his own argument. I hold him to it, and I
ask the Senate to pass upon it. I refer to the
authority of Sedgwick on Statutory and Con
stitutional Law, page 190:
“The effort of the English courts appears indeed
always to be to give the statutes of that kingdom a
prospective effect only, unless the language is so clear
and imperative as not to admit of doubt.”
:#

+

#:

:

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sk

sk

#

tº:

“In this country the same "Pºiº to giving stat
utes a retroactive effect has been manifested, and
such is the general tenor of our decisions.”

I have no doubt of it., The express language
of the first clause of the law gives it a retro

º operation in

one sense of the word,

that is, it embraces every officer heretofore ap

“That every person holding any civil office to which

he has been appointed, by and with the advice and
consent of the Senate”
+
+
4
+
“sha
be entitled to hold such office until a successor shall
been in like manner appointed and duly qual

#.
1

-

The proviso, even allowing it to have the

effect and operation which the gentlemen claim,
only vacates the office; but it does not allow a
successor to be appointed. There is not a
word or syllable of that sort in it. The statute
then stands declaring in substance that all va
cancies in all these Departments shall hereafter
be filled only by and with the advice and con

sent of the Senate, save as it may be qualified
by the third section; and what is that ?
“That the President shall have power to fill up all

pointed by and with the advite and consent of

vacancies which may happen during the recess of

the Senate, and by express language every

the Senate, by reason of death or resignation, by
granting commissions which shall expire at the end

officer hereafter to be so appointed.

of their next session thereafter.”

But this

proviso, in the words of Mr. Curtis, contains
no express language of that kind, and on the
contrary, contains words which exclude the

Showing additional reasons in support of my
position that this statute necessarily repeals
the acts of 1789 and 1795, that he may merely

conclusion. I leave the question there. If Mr.

fill up during the recess, reiterating in other

Lincoln had lived I think every Senator must

words the provision of the Constitution itself,
agree that under this statute and within the. but by law absolutely limiting and restricting
reason of the law he could not have availed
power of appointment to vacancies during
himself of the acts of 1789 and 1795 to remove his
the recess.
a single head of Department appointed by him
“And if no appointment, by and with the advice
self at any time during his term; and I do not and consent of the Senate, shall be made to such
care how often his term was renewed it was

office sq vacant or temporarily filled as aforesaid dur

still the term and answered to the statute, and
he was still the President by whom these

ing such next session of the Senate, such office shall
remain in abeyance, without any salary, fees or emol
'uments attached thereto, until the same shall be filled

by appointment thereto, by and with the advice and
officers were appointed. And when his term consent
of the Senate.”
expired, whether it was renewed twice or three
Showing, as plainly as language can show, that
or four times, when his term had expired the
proviso in futuro took effect according to its the President's power over the premises is by

own express language, and the offices by oper.
ation of law became vacated one month after

law absolutely excluded.
“And during such time all the powers and duties

49
belonging to such office shall be exercised by such
other officer as may by law exercise such powers and

the hearing of the Senate from 4 Bacon, and
which crime at common law is made indict

duties in case of a vacancy in such office.”

This throws you back upon the provisions of

able by your act of 1801, and so affirmed by
the decisions of the circuit court of your Dis.

the act of 1863, but there is the express provis
ion that the office shall remain in abeyance.
Here is an appointment ad interim during the
session of the Senate; here is an appointment
ad interim to fill a vacancy which did not arise

trict and by the decision of the Supreme Court

answered that yesterday, that the very words

confessed by himself in his letter which I read
yesterday in the hearing of the Senate, and

of the United States, which I also read in the
hearing of the Senate. I ask Senators to con
sider whether, admitting that the Secretary of
War had ceased to be entitled to the office,
and
was not to be protected in the office by
during the recess; here is an appointment ad:
interim to fill a vacancy created by an act of operation of the law, the President must go
removal by himself; and what do the gentle acquit of these conspiracies into which he has
men say to it? Why it did not succeed, I entered and for the very purpose alleged, as
of the statute declare that the issuance of the

letter of authority shall be itself a high misde
meanor.

That is answer enough.

But what else is said here about this thing?
The gentlemen come here to argue and put it
in the answer of the President that the act of

1867 is unconstitutional and void. They have
argued for hours here to the Senate to assure
them that no man can be guilty of a crime for
the violation of an unconstitutional act, be
cause it was no law that he violated. Why all
this effort, Senators, made by these learned
counsel? Why this solemn averment in this
answer of the President that the act of 1867 is

unconstitutional and void, if, after all, there
was no violation of its provisions; if, after all, it

must go acquit of issuing this letter of author
ity in direct violation of the sixth section of
the act.

There were other words uttered by the coun
sel here to show that there was a great deal
more in this accusation than these gentle
men were willing to concede. The Senate
will remember the language of Mr. Attor
ney General Stanbery, that this act was an
odious, offensive, unconstitutional law, in that
it attempted to impose penalties upon the Ex
ecutive for discharging his executive functions,
making it a crime or misdemeanor for him to

exercise his undoubted discretionary power as
claimed in his answer under the Constitution.

was no crime for him to make this ad interim

He affirmed here with emphasis before the

appointment; if, after all, the acts of 1789 and
1795 remain in full force? Senators, I have
no patience to pursue an argument of this sort.

Senate that the law was made exclusively for the
Executive. He forgot, Senators, that the fifth

The position assumed is utterly inexcusable,
utterly indefensible. Admitting Mr. Stanton,
if you please, to be within the proviso, admit.
ting that the proviso operated retrospectively,

in the breach of the law, and makes it a high

admitting that it vacated his office on the 4th
day of April, 1865, as also the offices of Mr.

Seward and Mr. Welles, and Mr. McCulloch,
leaving the Republic without any lawful heads
to those Departments, accepting the absurd
propositions of these gentlemen, and I ask you

section of the act makes it apply to every man
who participates with the Executive voluntarily
misdemeanor for any person to accept any
such appointment, &c., punishable by fine and

imprisonment in the same measure precisely
as the President himself is punishable.
I do not understand, Senators, why this line

of argument was entered upon, if my friend
from Ohio was right in coming to the conclu

sion that there was nothing in the conspiracy,

what answer is that to the second and third

that there was nothing in issuing the letter

and eighth articles of accusation against this
President that he committed a high crime and

of authority in violation of the express penal

misdemeanor in office in that he issued a letter

of authority contrary to the provisions of the
sixth section ?

It is just no answer at all.

I

think the counsel must so understand it them
selves.

What answer is that, I ask you, Senators
to the charges in the fourth, fifth, sixth, and

provisions of the law, if Mr. Stanton was
not protected by the law and could be right
fully removed. There is a great deal in it
beyond that. The President had no right to

make the appointment. That is the express
language of your law.

And for doing it he is

liable to indictment whenever the Senate shall

seventh articles, that he entered into con

have executed its power over him by his re
moval from office. I explained yesterday how

spiracy with Thomas to prevent the execution

it is that he is not liable to prosecution before.

of the law, and the averment in the eleventh

Your Constitution provides that, after the judg

article, which averments are divisible, as every
lawyer knows, that he attempted by device and

ment shall be pronounced upon him of re
moval from office he may be held to answer
by indictment for the crimes and misdemean

contrivance to prevent the execution of the

law and to prevent the Secretary of War, Ed.
win M. Stanton, from resuming the functions
of the office in obedience to the requirements

ors whereof he has been impeached.
I referred yesterday, Senators, to the fact

of the act of 1867, which is also made a crime
by your act of 1861 touching conspiracies,
which is a crime at common law, as I read in

has been pursuing these acts of usurpation in

disclosed in the evidence that the President

utter defiance and contempt of the people's
power to control him since the impeachment

50

hearing of the Senate yesterday what Thomas

called a military order; yet the habitual cus
tom of the officers of the Army to obey all the
orders of a superior, gave it in some sense the
force of a military order to Adjutant General
Thomas, commanding him to take possession
of the Department of War while the Senate
was in session and without consulting it. It

swore to, that the President concluded to defer

would not surprise me, Senators, at all, if the

was preferred against him. I read in the hear
ing of the Senate yesterday what was sworn to
by Thomas as to the proposition to have an
order made upon General Grant to compel the

surrender of the papers of the Department of
War to his Secretary ad interim.

I read in the

action upon the order which Thomas had writ
ten out and left lying upon the table awaiting
the result of impeachment. And, Senators,
something has transpired here upon the floor
in the progress of this case which gives signifi
cance to this conversation between the Presi

dent and Thomas, and that was the language

of his veteran and intrepid friend from Tennes
see, [Mr. NELson,] who stood here unmoved
while he uttered the strong words in the hear
ing of the Senate, that it was his own conviction,
and it was also the conviction or opinion of the
President himself, that the House of Repre

President were to issue an order to-morrow

to his Adjutant General to disperse the Senate,
after sending such an utterance as this here

by the lips of his counsel, that the Senate has
no constitutional right to try him by reason,
he says, of the absence of twenty Senators,
excluded by the action of this body, elected
by ten States entitled to representation on this

floor—a question which the President of the
United States has no more right to decide nor
to meddle with than has the Czar of Russia.

It is a piece of arrogance and impudence for
the President of the United States to send to

sentatives had no power under the Constitution
to impeach him, no matter what he was guilty

they are not constitutionally constituted, and

of, and that the Senate of the United States had
no power under the Constitution as now or

have no right to decide for themselves the
qualification and election of their own mem

ganized to try him upon impeachment. We
are very thankful that the President, of his
grace, permits the Senate to sit quietly and de
liberate on this question presented by articles

bers when it is the express provision of the

of impeachment through the people's Repre

the Senate of the United State a message that

Constitution that they shall have that power,
and no man on earth shall challenge it.
I trust, Senators, after this utterance of the
President, which is substantially an utterance
that you shall suspend judgment in the matter

sentatives.
. But I ask Senators to consider whether the
President—for I observe the counsel did not

and defer to his will to a trial in the courts

intimate that the President was willing to abide
the judgment—whether the President in this
matter, after all, is not playing now the same

laws executed—that the Senate of the United

when it shall suit his convenience to inquire
into the rights of the people to have their own
States will prove itself in the finale of this
controversy with the President possessed of the

rôle which he did play when he availed him
self of the provisions of the tenure of office act
to suspend Edwin M. Stanton from office and

grand heroic spirit of which the deputies of the

appoint a Secretary ad interim to await the
action of the Senate; whether he is not play

the king sent to its bar his order that the rep

ing the same rôle that he did play further when
he availed himself of that act and notified the

nation were possessed in 1789 in France when
resentatives of the people should disperse. Its
illustrious president, Bailly, rising in his place
was hailed by the grand master with the in

Senate of the suspension, together with the
reasons and the evidence, agreeing to allow the
Senate to deliberate, agreeing, if the Senate

quiry, “You heard the king's order, sir?”
“Yes, sir,” and immediately turning to the

would concur in the suspension and make it

bly until it has deliberated upon the order.”

absolute, to abide the judgment; but, never
theless, reserving to himself that unlimited

“Yes, sir,” and “It appears to me that the

rerogative of executive power to defy the final
judgment of the Senate if it was not in accord
with his own. Is that the posture of this case?
I think it had been well for the President of

the United States, when he was informing us of

his opinions on the subject through his learned
counsel, to have gone a step further and to have
informed us whether he would abide the judg
ment. He has let us know that we may sit and

try him, as he let the Senate know before that
they might sit and consider his reasons of sus
pension; but he let them know, when they came
to a conclusion adverse to his own, that he
would not abide their judgment.
He issued an order to Thomas. His counsel

in the opening—and that is another significant
fact in this case—said it could not be strictly

deputies, said, “I cannot adjourn the Assem
“Is that your answer?” said the grand master.
assembled nation cannot receive an order;”
followed by the words of the great tribune of
the people, Mirabeau, “Go tell those who sent
you that bayonets can do nothing against the
will of the nation.” That, sir, is our answer
to the arrogant words of the President that the
Senate has no constitutional right to sit in

judgment upon the high crimes and misde
meanors whereof he stands impeached this

day by the Representatives of the people.
I have said, Senators, all that I have occa
sion to say touching the first eight articles pre
ferred against the President. Having entered
into this conspiracy, having issued this order
for removal unlawfully, having issued this let
ter of authority unlawfully, it was necessary

that the President should take another step in

51
his guilty march ; and accordingly he ventured,

operations.

as conspirators always do, very cautiously upon
the experiment of corrupting the conscience
and staining the honor of the gallant soldier
who was in command of the military forces of

exclusively to the District is to be sneered at

the District.

He had an interview with him

the day after he had issued this order, the day
after he had issued this letter of authority, and
said to him, “Sir, this act of 1867 making ap

propriations for the Army which requires all
military orders to pass through the General of
the Army, whose headquarters are in the Dis
trict of Columbia, and which declares also that
any violation of its provisions shall be a high
misdemeanor in office is an unconstitutional

law; it is an unconstitutional law, General,
and it is not within the purview of your com
mission.” It was simply a suggestion to the
General that his Commander-in-Chief would

stand by him in violating the law of the land.
It was a suggestion to him that it would be a
very great accommodation if the commandant
of the military forces of the District of Colum
bia would receive his orders directly from the
President and not from the General of the

Army.
It was a confession, Senators, by indirection,
to be sure—that confession, however, which
always syllables itself upon the tongue of guilt
when guilt speaks at all—that General Grant,
the hero of the century, who led your battal
ions to victory upon a hundred stricken fields,

having vindicated the supremacy of the laws by
wager of battle, would surely here in the capi.
tal be faithful to the obligations and the re
quirements of law, and refuse to strike hands

with him. More than that; he had put it in
writing and confessed, to which I asked the
attention of Senators yesterday, to this effect,

“You knew, General Grant, that my object
and purpose was to violate and defy the law ;
yºu accepted the office to circumvent me.”
That is his language in his letter to Grant of

If the legislation which is limited

by counsel, what means the provision in the
Constitution that the Congress shall have ex
clusive legislative power over the District? It
is for the protection and defense of the nation.
But it is not limited altogether to the District
at last.

The act of 1801 was limited to the

District in applying the common-law rule, but
the act which it supports is coextensive with
the Republic.

It is not necessary that the offi

cer himself should be indictable in order to hold

him impeachable. It is only necessary that the
act he did, by the strict construction that is put
upon this question by the counsel for the ac
cused, was a crime or misdemeanor under the
laws of the country. That it was such a crime
and misdemeanor I have shown.
I leave article nine.

I now consider article

ten, about which a great deal has been said
both by the opening counsel and by the con
cluding counsel. The President is in that
article charged with an indictable offense in
this, that in the District of Columbia he uttered
seditious words—I am stating now the sub
stance and legal effect of the charge—seditious

words tending to incite the people to revolt
against the Thirty-Ninth Congress and to dis
regard their legislation, asserting in terms that
it was no Congress, that it was a body “assum
ing to be a Congress” “hanging upon the verge
of the Government,” and committing also acts
of public indecency which, as I showed to the
Senate yesterday upon the authority which I
read, is at common law an indictable misde
meanor, showing a purpose to violate the law
himself and to encourage and incite others to
violate the law. The language of the Presi
dent was the language of sedition.
What did the counsel say about it? They
referred you to the sedition act of 1798, which
expired by its own limitation, and talked about
its having been a very odious law. I do not

the 10th of February. And yet the gentlemen

know but they intimated that it was a very

say it is a miserable accusation | Is it? It is
so miserable an accusation that in any other
country than this, where the laws are enforced

unconstitutional law.

Pray what court of the

United States ever so decided ?

There were

prosecutions under it, but what court of the

rigidly, it would cost an executive or military

United States ever so decided ?

officer his head to suggest to any subordinate

manding authority upon the Constitution ever

that he should violate a law, and a penal law
at that, touching the movement of troops and

ruled that the law was unconstitutional?

military orders, and so plain that no mortal
man could mistake its meaning. I say no more

your statute-book, of general operation and

upon that point; I leave it with the Senate.

national peril. That was a day of national
peril. There was sedition in the land. The

The act itself in its second section declares

that a violation of its provisions shall be a high

misdemeanor in office, punishable by fine and
imprisonment in the penitentiary. The rule
of law is that an attempt to commit a misde
meanor is itself a misdemeanor.

It is the rule

of the common law, and it is the rule of the
District happily, and governs the President and
ought to govern him and ought to govern every

. else within the District.

What com
I

admit that no such law as that ought to be upon
application in this country, except in a day of
French minister was abroad in the Republic,
everywhere attempting to stir up the people to
enter into combinations abroad hurtful and

dangerous
to the security of American institu
tions.
But I pass it.

The gentlemen referred to

Mr. Jefferson coming into power through his
hostility to the sedition act of 1798; and he

I heard a sneer

had no sooner got into power than he re

about this question, I thought, from one of the

enacted it as to every officer and soldier of

counsel that it was limited to the District in its

your Army, and it stands the law of your

52
I read from

the act of 1806:

is worth a whole eternity of bondage. That
is our American constitutional liberty—the

“Any officer or soldier who shall use contemptuous
or disrespectful words against the President of the

liberty in defense of which the noblest and the
best of our race, men of whom the world was
not worthy, have suffered hunger and thirst,

Republic from that day to this.

United States, against the Vice President thereof,
against the Congress of the United States, or against
the Chief Magistrate or Legislature of any of the
United States in which he may be quartered, if a

cold and nakedness, the jeer of hate, the scowl
of power, the gloom of the dungeon, the tor

commissioned officer, shall be cashiered or otherwise

ture of the wheel, the agony of the fagot, the
ignominy of the scaffold and the cross, and by
punishment as shall be inflicted on him by the sen their living and their dying glorified human
tence of a court-martial.”
nature, and attested its claim to immortality.
Even unto death. That has been for more I stand, Senators, for that freedom of speech;
than sixty years the law of the Republic. but I stand against that freedom of speech
Using disrespectful language toward the Pres which would disturb the peace of nations and
ident or using disrespectful language toward disturb the repose of men even in their graves.
punished as a court-martial shall direct; if a non

commissioned officer or soldier, he shall suffer such

the Congress is an offense in an officer or

There is, Senators, but one other

part of

soldier.

this case that I deem it my duty particularly
The gentlemen read from the Constitution further to discuss; and that is the allegation
in the hope, I suppose, to show that it was contained in the eleventh article, which alleges
utterly impossible for the Congress of the specifically the attempt, not the accomplish
United States to inflict pains and penalties by ment, of the acts, but rests on all the evidence,
law for seditious utterances either by their which applies to all the other articles preferred
President or anybody else. If it were com against this accused and guilty man—the at
º for the Congress of 1806 to enact that tempts by devices to incite the people to resist
aw, it was equally competent for the Congress ance against their own Congress and its laws
of 1798 to enact a sedition law; and by the act by declaring that it was a Congress of only
of 1801 these seditious utterances made in your part of the States; the attempt to prevent the
District are indictable as misdemeanors, ratification by the Legislatures of the several
whether made by the President or anybody States of the fourteenth article of amendment
else, and especially in an official charged with preferred by the Thirty-Ninth Congress on the
the execution of the laws—for, as I read yes same ground that it was not the Congress of
terday, a refusal to do an act required by the the nation and had no power to propose an
law of an officer is at common law indictable article of amendment to the Constitution, a
—the attempt to procure another or others position asserted by him even in his messages
to violate law, on the part of such officer, is to the Congress, reasserted in his speech ; an
also indictable ; and, in general, seditious
utterances by an executive officer at the com

attempt to prevent the execution of the tenure

incite the officers of the Army to mutiny or to

of-office act; an attempt to prevent the exe
cution of the act making appropriations for
the support of the Army and the Department
of War, passed March 2, 1867; an attempt to

disregard law.

defeat the operation and execution of the act

mon law always were indictable; that is to say,
to incite the people to resistance to law or to

But, say counsel, this is his guarantied right for the more efficient government of the rebel
under the Constitution. The freedom of speech, States.
Why, said the learned gentleman from Ohio,
says the gentleman, is not to be restricted by
a law of Congress. How is that answered by [Mr. Groesbeck, J the evidence that we introduce
this act of 1806, which subjects every soldier to support this last averment of the eleventh ar.
in your Army and every officer in your Army ticle, it appears, was a thing done by the Presi
to court-martial for using disrespectful words dent some months before the act was passed.
of the President or of the Congress or of his The gentleman was entirely right in his dates,
superior officers ? The freedom of speech guar but he was altogether wrong in his conclusions.
antied by the Constitution to all the people of the We introduced the telegram for no such pur
United States, is that freedom of speech which pose. We introduced the telegram in order
respects, first, the right of the nation itself, to sustain that averment of the eleventh article
which respects the supremacy of the nation's that he attempted to defeat the ratification of
laws, and which finally respects the rights of the fourteenth article of amendment, an amend
every citizen of the Republic. I believe in ment essential to the future safety of the
that freedom of speech. That is the free Republic, by the judgment of twenty-five mil
dom of speech to which the learned gentleman lion men who have so solemnly declared by its
from New York referred when he quoted the ratification in twenty-three of the organized
words of Milton: “Give me the liberty to States of the Union.
This fourteenth article of amendment, as the
know, to argue, and to utter freely according
That is

Senate will recollect, was passed about the

the liberty which respects the rights of nations
and the rights of individuals, which is called
that virtuous liberty, a day, an hour of which,

to conscience above all liberties.”

month of June, 1866, by the Thirty-Ninth Con
gress. After it had been passed, and ratified
perhaps by some of the States, the President

53
sent this telegram to Governor Parsons, of
Alabama, dated January 17, 1867:
“What possible good can be obtained by reconsid
ering the constitutional amendment?”

It had already been rejected by that Legis
lature.
“I know of mone in the present posture of affairs:
and I do not believe the people of the whole country
will sustain any set of individuals in attempts to
change the whole character of our Government by
enabling acts or otherwise.”

“Any set of individuals,” not a Congress,
but a simple mob.

SEC. 2. Representatives shall be apportioned
among the several States according to their respect
ive numbers, counting the whole number of persons

in each State, excluding Indians not taxed. But
when the right to vote at any election for the choice
of electors for President and Vice President of the
United States, Representatives in Congress, the ex
ecutive and judicial officers of a State, or the mem
bers of the Legislature thereof, is denied to any of
the male inhabitants of such State, being twenty
one years of age and citizens of the United States, or

in any way abridged, except for participation in re
bellion or other crime, the basis of representation
therein shall be reduced in the proportion which the
number of such male citizens shall bear to the whole
number of male citizens twenty-one years of age in
such State.
shall be a Senator or Repre
SEC. 3. No
sentative in Congress, or elector of President and
-

“I believe, on the contrary, that they will eventu
ally uphold all who have patriotism and courage to
stand by the Constitution, and to place their confi
dence in the people. There should
no faltering on
the part of those who are honest in their determina
tion to sustain theseveral coördinate departments of

*.

the
Gºvernment in accordance with its original de
Slgll.
Coupled with his messages to Congress, cou
led with the utterances of his counsel from

Tennessee, what is all this but an affirmation
on the part of the President that the States
lately in insurrection after all hold the power
over the people of the organized States of this

Union to the extent that they can neither legis
late for the government of those disordered
communities, nor amend their own Constitu
tion even for the Government and protection of
themselves? If it does not mean that, it means
nothing. In the language of the learned coun

sel from New York, who appears as the able
advocate of the President at this bar, it is an
attempt on the part of the President to revive
an expiring rebellion, “the lost cause.” It is
an utterance of his to the effect that unless the

8.

Vice President, or hold any office, civil or military,
under the United States, or under any State, who,
having previously taken an oath as a member of
Congress, or as an officer of the United States, or as
a member of any State Legislature, or as an execu
tive or judicial officer of any State, to support the
Constitution of the United States, shall have en
gaged in insurrection or rebellion against the sºme,
or given aid or comfort to the enemies thereof. But

Congress may; by a vote of two thirds of each House,
SEG, 4. The validity of the public debt of the Uni

remove such disability.

ted States authorized by law, including debts in

curred for payment of pensions and bounties for ser
vices in suppressing insurrection or rebellion, shall
not be questioned. But neither the United States
nor any State shall assume or pay any debt or obli–

gation incurred in aid of insurrection or rebellion
against the United States, or any claim for the loss

or emancipation of any slave; but all such debts

obligations, and claims shali'be held illegal and
Volol.
SEC. 5. That Congress shall have power to enforce,
by appropriate legislation, the provisions of this
article.

That is the article which the people desire
to adopt, and that which President by co

ten States lately in insurrection choose to as

operation and combination with those lately

sent, the people of the organized States shall

in rebellion seeks to defeat. What right had
he to meddle with it? The gentlemen under

not amend their Constitution.

The President

took to draw a distinction between Andrew

calls on men to rally to his standard in sup
port of the coördinate departments of the Gov
ernment against these encroachments of a

“set of individuals” upon the rights of the
people.
Senators, you remember well what the gen

Johnson the citizen, and Andrew Johnson
the President. I thought, Senators, at the
time I could see some significance in it. It
was a little hard for them to stand here and

eral provisions of the fourteenth article of the

defend the right of the President under his
sworn obligation to take care that the laws

amendment were. I desire, however, to the
right understanding of this question elsewhere

Constitution under the law and in accord
ance with the law and the limitations of the

as well as here, that this article of amendment
shall go into the record of this case, thus as

sailed by the President in his conspiracy with
those lately in rebellion, in his attempt to re
vive “the lost cause,” in his attempt to impose

be faithfully executed, and to support the
law, to excuse him as President for any of

those utterances. It was a much more easy

a fetter upon the nation which at last will work

matter, if you will, to excuse him as private
citizen Andrew Johnson for saying that the
people were without a Congress, and that being

its ruin and crown the rebellion itself with suc
cess. The fourteenth article of amendment is
in these words:

without a Congress their legislation was void,
and, of course, was not to be enforced except
in so far as he saw fit to approve or to enforce

ARTICLE XIV.

it; that being without a Congress, they had no
right to propose this article of amendment

SECTION 1. All *. born or naturalized, in the
United States, and subject to the jurisdiction thereof,

essential to the future life of the Republic.

are citizens of the United States and of the State

What was this at last but saying that rebellion

wherein they reside. N9 State shall make or enforce

works no forfeiture?

any law which shall abridge the privileges or immu

nities of citizens of the United States; nor shall any
State deprive any person of life, liberty, or property

without due progess of law, nor deny to any person
lºin
its jurisdiction the equal protection of the
aW.

What was this at last

but saying that by acts of secession and acts of

rebellion in sufficient numbers among eleven
States, or more than one fourth of all the

States of the Union, and a persistent refusal

54
to eiect members to Congress, they thereby

deprive the people of legislative power, and by
the same method deprive the people of the
power to propose amendments to their own

and hinder and prevent, as averred in that
article, the execution of the tenure-of-office
act, especially, as therein averred, to prevent
the Secretary of War from forth with resuming

Constitution?

the functions of his office in obedience to the

No more offensive words, Senators, ever were
uttered by an executive officer in this country
or any country ; no utterances more offensive
could by possibility be made by Andrew John
son. They are understood by the common,
plain people as the utterances of an expiring
rebellion in aid of the lost cause. Hostility
to the amendment—why? Because, among
other things, it forever makes slavery impos
sible in the land; because, among other things,
it makes the repudiation of the plighted faith
of this nation, either to its living or to its dead
defenders, forever impossible in the land; be
cause, by its further provisions, it makes the
assumption of any debt or liability contracted
in aid of the rebellion, either by State or con

requirements of the act. And it is no matter
whether Secretary Stanton was within the act
or without it, it was decided by the legislative
department of the Government, by the Senate
of the United States under the Constitution,
and its decision under the law should have con

saying that you might have the power of ordi
nary legislation, although you had no power
of impeachment, and said that was the Presi

trolled the President, as it certainly must con
trol the Secretary.
The law was mandatory—it commanded the
Secretary, upon the decision of the Senate and
notice given to him, forthwith to resume the
functions of that office, and for disobedience
to its commands, after such judgment of the
Senate and such notice, he himself should be
impeached. Now, this fact being established
and confessed, how is the Senate to get away
from it when the President himself puts it in
writing and confesses, on the 10th day of Feb
ruary, 1868, that as early as the 12th day of
August, 1867, it was his purpose to prevent
Edwin M. Stanton from resuming the functions
of that office, and therefore it was his purpose,
as alleged in the eleventh article, to prevent,
if by possibility he could, the execution of the
law? Senators, I can waste no further words
upon the subject. It is useless for me to ex
haust my strength by further argumentation.
I assume, Senators, after all that I have said
on this subject, that I have made it clear to the
entire satisfaction of every Senator that the

dent's opinion, gave us notice in advance that

substantive averments of the various articles

that was the President's opinion. He will
allow you to proceed with the mockery of the
trial, giving you notice, however, that you have
no right to pronounce judgment unless you
pronounce judgment of acquittall
As I said before, Senators, all the facts of
this case support the averment of the eleventh

preferred by the House of Representatives
against the President are established by the
proof and confessed substantially by his answer.
I hold, Senators, that these articles are sub
stantially established upon the proofs in the

article of impeachment. I do not propose to

the President did issue his order for the re

gressional legislation, forever impossible in the
land ; because, by its provisions, it makes com

#.
for slaves forever impossible in the
and, either by congressional enactment or by
State legislation.

Is that the secret of this

hostility? If not, then what is it? Simply
that you have no Congress and no right to
amend the Constitution; that your nationality
is broken up and destroyed. And his own ad
viser and counselor in this presence took the

same ground, only he attempted to qualify it by

review them.

case, upon the confessions of the President
himself of record in his answer, in this, that

I have referred already at suffi

moval of the Secretary of War during the ses.

cient length to the facts which do support it.

sion of the Senate of the United States in

I only ask Senators to remember when they

violation of the provisions of the act of March
2, 1867, regulating the tenure of certain civil
offices, and with the intent to violate it, which

come to deliberate that there are several aver

ments in the eleventh article of these attempts
to violate the law which I have shown by your
act of 1801 and the rule of common law are

intent the law implies, and which intent the
President expressly confesses.

indictable in the District; that these were com

That his guilt is further established in this:
mitted within the District; and that the aver that he did issue his letter of authority to
ments are divisible. You might find him not
guilty of one of the averments in the eleventh

Thomas in violation of that act, with the intent,

be a crime for the President purposely and

submitted the same to the judgment of the

as declared by himself, to prevent the Secre
article and find him guilty of another. Surely tary of War from resuming the functions of
you will find him guilty, and must find him the office after he himself had suspended him
guilty, upon your consciences, if you hold it to in pursuance of the provisions of the act, and
deliberately to attempt to prevent the execu Senate according to its requirements.
tion of a law of Congress, with or without force,
That he is guilty further in this: upon the
with or without threat or intimidation. You proofs that he did unlawfully conspire with
must under the eleventh article find this man

guilty of having entered into such combination
and having contrived and devised to defeat

Lorenzo Thomas, as charged in the fourth, fifth,
sixth, and seventh articles, with or without
force, with or without intimidation, to prevent

55
-

and hinder the Secretary of War from holding
the office in direct violation of the terms of
the tenure-of office act.

That he is guilty further in this: that he did
attempt to induce General Emory to violate
the act making appropriations for the support
of the Army, the violation of which act is by
its second section declared to be a high mis
demeanor in office.

That he is guilty further in this: that by his
intemperate and scandalous harangues he was
guilty of a great public indecency and of the
attempt to bring the Congress of the United

States into contempt and to incite the people

They have acquired and taken something of
technical form and shape in the articles; but
the effect of the charges against the President

is usurpation in office, suspending the people's
laws, dispensing with the execution thereof
purposely, with intent to violate them, and, in
the language of the article, to hinder and to
prevent their execution.
The attempted avoidance set up is an im
plied judicial power, as it was called by the
learned counsel of the President, to determine
for himself the true construction of the Consti

tution and judicially to determine for himself
the validity of all your laws. I have endeav

ored to show, Senators, that this assumption
That he is guilty in this: that by denying the of the President is incompatible with every
constitutionality of the Thirty-Ninth Congress, provision of your Constitution; that it is at war
and by his acts before referred to, he did as with all the traditions of the Republic; that
sume to himself the prerogative of dispensing it is in direct conſlict with the contemporane
to sedition and anarchy.

with the laws, of suspending their execution
at pleasure, until such time as it might suit his
own convenience to test the question of their
validity or to ascertain the true construction
of the Constitution in the courts of the United
States.

And that by contriving with those lately in
insurrection he did further attempt to prevent
the ratification of the fourteenth article of

ous and continued construction of the Consti

tution by the legislative, executive, and judicial
departments. I have endeavored also to impress
you, Senators, with my own conviction that
this assumption of the President to interpret
the Constitution and the laws for himself, to
suspend the execution of the laws at his pleas

ure, is an assumption of power simply to set
aside the Constitution, to set aside the laws,

amendment to the Constitution; and by all and to annihilate the Government of the peo
these several acts did attempt to prevent the
execution of the tenure-of office act, the ex
ecution of the Army appropriation act, and the

ple.

This is the President's crime: that he

has assumed this prerogative, dangerous to the

execution of the act for the more efficient gov

people's liberties, violative alike of his oath,
of the Constitution, and of the laws enacted

ernment of the rebel States.

under the Constitution.

These facts being thus established will not

I have also endeav

ored to show to the Senate that these offenses,

only enforce conviction upon the Senate, in my as specified in the articles, are impeachable,
judgment, but they will enforce conviction as

and are declared by the laws of the land to be

well upon the minds of the great body of the high crimes and misdemeanors, indictable and
people of this country.
punishable as such.
Nothing remains, therefore, Senators, for me
And yet the President has the audacity in
further to consider in this discussion than the

his answer—and I go not beyond it to convict

confession and attempted avoidance of the

him—to come before the Senate and declare

President as made in his answer.

ticipated it in the body of my argument. Sen.

in substance: “Admitting all that is charged
against me to be true; admitting that I did

ators have attended to what I have said.

I have an
It

suspend the execution of the laws; that I did

is only needful for me to remind them that
it is answered by the President that he claims
the power indefinitely to suspend the heads

enter into a conspiracy with intent to prevent
the execution of the laws, that it was my pur

of Departments during the session of the Sen

issue a letter of authority in direct violation
of the law; nevertheless, I say it was my right
to do so, and it is not your right to hold me
to answer, because by force of the Constitu
tion I am entitled to interpret the Constitution
for myself, and to decide upon the validity of

ate without their advice and consent, and to

fill the vacancies thus made by appointments
ad interim ; that he claims the right to inter
pret the Constitution for himself, and, in the
exercise of that right, to pronounce for him

pose to prevent their execution, that I did

self upon the validity of every act of Con
gress which may be placed upon the statute
book, and therefore, by virtue of his preroga
tive as the Executive of the United States, in

a law, whether it conflicts with a power con

defiance of your laws and in defiance of the
transcendent power of impeachment, vested

President's answer as recorded here.

ferred upon me by the Constitution, and if it

does I must take the necessary steps to test its
validity in the courts of justice.”

That is the

I have endeavored to show, further, that the

by the people in their House of Representa civil tribunals of this country, under the Con
tives, he may suspend the laws and dispense stitution, can by no possibility have any power
to determine any such issue between the Pres
with their execution at his pleasurel
That is the position of the President. These

are the offenses with which he stands charged.

ident and the people.

I do not propose to

repeat my argument, but I ask the Senate to

56
consider, that if the courts shall be allowed to
intervene, and in the first instance decide any
uestion of this sort between the people and

the accused President, it necessarily does re
sult that the courts at last, acting upon the

suggestions of the President, may decide every
question of impeachment which can possibly
arise by reason of the malfeasance and guilty
acts of a President in office, and defy the power
of the people to impeach him and try him in
the Senate. What, the Supreme Court to

decide a question of this sort for the Senate
of the United States, when the Constitution
declares that the Senate shall have the sole

}.

to try all impeachments, which I said
efore necessarily includes the sole power
to try every question of law and fact

and forever between the President

#.
and the

people !

That is my answer. That is the position we
assume here, on behalf of the people, before

#.

the Senate. If we are wrong;
. all, you,
Senators, can cast the burden which, in our

judgment, the Constitution imposes upon you,
and upon you alone, on the courts, thereby

depriving the people of the power of removing
an accused and guilty President, that is for
ou.

We do not entertain for a moment the

elief that the Senate will give any counte

nance to this position assumed by the Presi
dent in his answer, and which at last constitutes
his sole defense.

These acts charged, then, as I said, are acts
of usurpation in office, criminal violations of
the Constitution and laws of the land; and in
asmuch as they are committed by the Chief

Magistrate of the nation, dangerous to the pub
lic liberties. The people, Senators, have de
clared in words too plain to be mistaken and
too strong to be evaded by the subtleties of a

man, and he their own sworn Executive? Let
the people answer that question, as they assur
edly will answer it, in the coming elections.
Is it not in vain, I ask you, Senators, that

the people have thus vindicated by battle the
supremacy of their own Constitution and laws,

if, after all, their President is permitted to sus.
pend their laws and dispense with the execu

tion thereof at pleasure, and defy the power
of the people to bring him to trial and judg
ment before the only tribunal authorized by
the Constitution to try him * That is the issue
which is presented before the Senate for deci
sion by these articles of impeachment. By
such acts of usurpation on the part of the

ruler of a people, I need not say to the Senate,
the peace of nations is broken, as it is only by
obedience to law that the peace of nations is

maintained and their existence perpetuated.
Law is the voice of God and the harmony of
the world—
“It doth preserve the stars from wrong,
Through it the eternal heavens are fresh and strong.”

All history is , but philosophy teaching by
example. God is in history, and through it
teaches to men and nations the profoundest
lessons which they learn. It does not surprise
me, Senators, that the learned counsel for the
accused asked the Senate, in the consideration
of this question, to close that volume of instruc.
tion, not to look into the past, not to listen to
its voices. Senators, from that day when the
inscription was written upon the graves of the
heroes of Thermopylae, “Stranger, go tell the
Lacedemonians that we lie here in obedience

to their laws,” to this hour, no profounder
lesson has come down to us than this: that

through obedience to law comes the strength
of nations and the safety of men.

No more fatal provision ever found its way

false logic, that the Constitution ordained by

into the constitutions of States than that

them and the laws enacted by their Representa
tives in Congress assembled shall be obeyed,
and shall be executed and enforced by their
servant, the President of the United States,

contended for in this defense which recog:
many to discriminate in the administration of
justice between the ruler and the citizen, be:

until the same shall be amended or repealed in

tween the strong and the weak. It was by this

the mode prescribed by themselves. They have

unjust discrimination that Aristides was ban.
ished because he was just. It was by this
unjust discrimination that Socrates, the won

written this decree of theirs all over this land in

the tempest and fire of battle.

nizes the right of a single despot or of the

When twelve million people, standing within der of the Pagan world, was doomed to drink
the limits of eleven States of this Union, en
tered into confederation and agreement against
the supremacy of the Constitution and laws,

and conspired to suspend their execution and
to annul them within their respective territo
rial limits, from ocean to ocean, by a sublime

uprising, the people stamped out in blood the
atrocious assumption that millions of men were

to be permitted, acting under State organiza
tions, to suspend for a moment the supremacy
of the Constitution or the execution of the

people's laws.

Is it to be supposed that this

great and triumphant people, who but yester
day wrote this decree of theirs amid the flame
of battle, are now at this day tamely to submit

the hemlock because of his transcendent vir.

tues.

It was in honorable protest against this

unjust discrimination that the great Roman
Senator, father of his country, declared that
the force of law consists in its being made for
the whole community.

Senators, it is the pride and boast of that
great people from whom we are descended, as
it is the pride and boast of every American, that
the law is the supreme power of the State and
is for the protection of each by the combined
power of all. By the constitution of England
the hereditary monarch is no more above the
law than the humblest subject; and by the
Constitution of the United States the Presi

to the same assumption of power by a single dent is no more above the law than the poorest

i'IXI I *P�TRIOT

:::

)ij

[,

57
and most friendless beggar in your streets.
The usurpations of Charles I inflicted untold
injuries upon the people of England, and finally
cost the usurper his life. The subsequent
usurpations of James II-a'nd I only refer to
it because there is between his official conduct
and that of this accused President the most
remarkable parallel that I have ever read in
history-filled the brain and heart of England
with the conviction that new securities must
be taken to restrain the prerogatives asserted
by the Crown if they would maintain their
ancient constitution and perpetuate their liber·
ties. It is well said by Hallam that the
usurpations of James swept away the solemn
ordinances of the legislature. Out of those
usurpations came the great revolut.ion of 1688,
which resulted, as the Senate well know, in
the dethronement and banishment of James,
in the elevation of William and Mary, in the
immortal Declaration of Rights, of which it is
well said that it is" The germ of the law which gave religious free­
dom to the Dissenter; which secured the independ­
ence of the judges; which limited the duration or
Parliaments; which placed the liberty of the press
under the protectieu of juries; wbicb prohibited the
sle.ve trade; which abolished the sacramentnl test;
which relie,·ed the Roman Catholics from civil dis­
abilities; which reformed the representative sys­
tem-of every good Jaw which has been passed dur­
ing a hundred and sixty years; of every good Jaw
which mny berenfter in the course of ages be found
necessary to promote the public weal and to satisfy
the demands of public opinion."
Senators, that great Declaration of Rights
contains in substance these words of accusation
llgainst this king of England: he has endeav·
ored to subvert the liberties of the kingdom
in this, that he has suspended and dispensed
with the execution of the laws; in this, that he
has issued commissions under the great seal
contrary to law; in this, that he has levied
monei to the use of the Crown contrary to
law; m this, that he has caused cases to be
tried in the king's bench which are cognizable
onl:y: in the Parliament. (The Lords Journal
of Parliament, vol. 14, p. 125.)
I ask the Senate to notice that these charges
against James are substantially the charges
presented against this accused Presideut and
confessed here of record, that he has suspended
the laws and dispensed with the execution of
the laws, and in order to do this has usurped
authority as the Executive of the nation, de­
claring himself entitled under the Constitution
to suspend the laws and dispense with their
execution. He has further, like James, issued
a commission contrary to law. He has further,
like James, attempted to control the appro·
priated money of the v.eople contrary to law.
And be has fnrther, hke James, although it
is not alleged against him in the articles of
impeachment, it is confessed in his answer,
attempted to cause the question of his responsi·
bility to the l?eople to be tried, not in the king's
bench, but m the Supreme Court, when that
que stion is alone cognizable in the Senate of
the United States. Surely, Senators, if these

usurpations, if these endeavors on the part of
James thus to subvert the liberties of the peo­
ple of England cost him his crown and king·
dom, the like offenses committed by Andrew
Johnson ought to cost him _his office and sub·
ject him to that perpetual disability pronounced
by the people through the Constitution upon
him for his high crimes and misdemeanors.
Senators, you will pardon me-but I will
detain you but a few moments longer-for ask­
ing your attention to another view of this ques•
tion between the people and the Executive. I
use the words of England's brilliant historian
when I say had not the legislative power of Eng·
land triumphed over the usurpations of James,
"with what a crash, felt and heard to the
farthest ends of the world, would the whole vast
fabric of society have fallen." May God for­
bid that the future historian shall record of this
day's proceedings,that by reason of the failure
of the legislative power of the people to triumph
over the usurpations of an apostate President
through the defection of the Senate of the Uni­
ted States, the just fabric of American empire
fell and perished from the earth I The great
revolution of 1688 in England was a forerun­
ner of your own Constitution. The Declara·
tion of Rights to which I have referred but
reasserted the ancient constitution of England,
not found in any written instrument, but scat­
tered through the statutes of four centuries.
The great principles thus reasserted by the
Declaration of Rights in 1688 were, that no
law should be passed without the consent of
the Representatives of the nation, no tax
should be laid, no regular soldiery should be
kept up, no citizen should be deprived for a
single day of his liberty by the arbitrary will
of the sovereign, no tool of power should ·
plead the royal mandate in justification for
the violation of any legal right of the hum·
blest citizen, and forever swept away the as·
sumption that the executive prerogative was
above the fundamental law. These were the
principles, Senators, involved in that day in
the controversy between the people and their
recusant sovereign. They are precisely the
principles this day involved in this contro­
versy between the people and their reculi&nt
President. Without revolution, Senators, like
the great Parliament of 1688, you are asked to
reassert the principles of the Constitution of
your country, not to be searched for through
the statutes of centuries, but to be found iu
that grand1 sacred, written instrument given
to us by tbe fathers of the Republic. The
Constit.ution of the United States, as I have
said, embodies all that is valuable of England's
Declaration of Rights, of England's constitu·
tion and laws. It was ordained by the people
of the United States amid the convulsions and
agonies of nations. By its express provisions
11 ll men within its jurisdiction are equal before
the law, equally entitled to those rights of
person which are as universal as the material
structure of man, and equally liable to answer

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58
to its tribunals of justice for every injury done
either to the citizen or to the State.

It is this spirit of justice, of liberty, of equal

it, and for the simple reason that the Constitu
tion is no respector of persons and vests neither
in the President nor in the private citizen judi

ity, Senators, that makes your Constitution
dear to freemen in this and in all lands, in that
it secures to every man his rights, and to the

cial power.

own law makers through their Representatives
in Congress assembled. The President thereby

violated Constitution and laws of a free people.
Can it be, Senators, that by your decree you

simply becomes their dictator. If the President

are at last to make this discrimination between

become a dictator he will become so by the judg
men of the Senate, not by the text of the Con
stitution, not by any interpretation heretofore

the ruler of the people and the private citizen,
and allow him to interpose his assumed right
to interpret judicially your Constitution and
laws? Are you solemnly to proclaim by your

-

Pardon me, Senators, for saying it; I speak
it in no offensive spirit; I speak it from a sense
people at large the inestimable right of self of duty; I utter but my own conviction and
government, the right which is this day chal desire to place it upon the record, that for the
lenged by this usurping President, for if he be Senate to sustain any such plea, would, in my
a law to himself the people are no longer their judgment, be a gross violation of the already

put upon it by any act of the people, nor by any
act of the people's Representatives. The Rep
resentatives of the people have discharged their
duty in his impeachment. They have presented
him at the bar of the Senate for trial, in that he
has usurped and attempted to combine in him
self the legislative and executive powers of this

decree :

-

“Plate sin with gold,

And the strong lance of justice hurtless breaks:
Arm it in rags, a pigmy's straw doth pierce it?”

battle the people made such sacrifice to main
tain it as has no parallel in history.

I put away, Senators, the possibility that the
Senate of the United States, equal in dignity
to any tribunal in the world, is capable of re
cording any such decision even upon the peti
tion and prayer of this accused and guilty
President. Can it be that by reason of his
great office the President is to be protected in
his high crimes and misdemeanors, violative

Senators, can it be that after this triumph

alike of his oath, of the Constitution, and of

of law over anarchy, of right over wrong, of
atriotism over treason, the Constitution and

the express letter of your written law enacted
by the legislative department of the Govern.

great people, thereby claiming for himself a
power by which he may annihilate their Gov
ernment.

We have seen that when the suprem

acy of their Constitution was challenged by

aws are again to be assailed in the capital of
the nation in the person of the Chief Magis
trate, and by the judgment of the Senate he is

to be protected in that usurpation ? The Pres

ment?

Senators, I have said perhaps more than I
ought to have said. I have said perhaps more
than there was occasion to say. I know that

by your judgment to set the accused above the

I stand in the presence of men illustrious in
our country’s history. I know that I stand in
the presence of men who for long years have

Constitution which he has violated and above

been in the nation's councils.

the people whom he has betrayed; and that,
too, upon the pretext that the President has
the right judicially to construe the Constitution
for himself, judicially to decide for himself the

stand in the presence of men who may, in some
sense, be called to-day the living fathers of

ident by his answer and by the representations
of his counsel asks you, deliberately asks you,

validity of your laws, and to plead in justifica
tion at your bar that his only purpose in thus
violating the Constitution and the laws is to test
their validity and ascertain the construction of

the Constitution upon his own motion in the
courts of justice, and thereby suspend your
further proceeding.
I ask you, Senators, how long men would

deliberate upon the question whether a private
citizen, arraigned at the bar of one of your
tribunals of justice for a criminal violation of

the law, should be permitted to interpose a plea
in justification of his criminal act that his only
iº. was to interpret the Constitution and
aws for himself, that he violated the law in the
exercise of his prerogative to test its validity
hereafter at such day as might suit his own con

venience in the courts of justice. Surely, Sen
ators, it is as competent for the private citizen

the Republic.

I know that I

I ask you, Senators, to con:

sider that I speak before you this day in behalf
of the violated law of a free people who com:
mission me. I ask you to remember that I
speak this day under the obligations of my

oath. I ask you to consider that I am not in:
sensible to the significance of the words of
which mention was made by the learned coun:
sel from New York: justice, duty, law, oath.
I ask you, Senators, to remember that the
great principles of constitutional liberty for
which I this day speak have been taught to
men and nations by all the trials and triumphs,
by all the agonies and martyrdoms of the past;
that they are the wisdom of the centuries
uttered by the elect of the human race who
were made perfect through suffering.

I ask you, Senators, to consider that we
stand this day pleading for the violated majesty

of the law, by the graves of a half million of

to interpose such justification in answer to crime

martyred hero-patriots who made death beau:
tiful by the sacrifice of themselves for their

in one of your tribunals of justice as it is for
the President of the United States to interpose

country, the Constitution, and the laws, and who

by their sublime example have taught us that all

59
must obey the law; that none are above the
law; that no man lives for himself alone, but
each for all; that some must die that the State
may live ; that the citizen is at best but for to

day, while the Commonwealth is for all time;
and that position, however high, patronage,

by your kind attention, and to demand, in the
name of the House of Representatives, and of
the people of the United States, judgment
against the accused for the high crimes and
misdemeanors in office whereof he stands im

however powerful, cannot be permitted to

peached, and of which before God and man he
is guilty.

shelter crime to the peril of the Republic.
It only remains for me, Senators, to thank

were manifestations of applause in different

you, as I do, for the honor you have done me

portions of the galleries, with cheers.

;

As Mr. Manager BINGHAM concluded there

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ºść 27 1365
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Hº!

i,
Uniºn
ey
Berkel

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